Race Relations (Amendment) Bill [H.L.]

HL Deb 11 January 2000 vol 608 cc532-600

3.2 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Bassam of Brighton.)

On Question, Motion agreed to.

House in Committee accordingly.

[THE PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES (LORD TORDOFF) IN THE CHAIR.]

Clause 1 [Discrimination by police and other public authorities]:

Lord Lester of Herne Hill moved Amendment No. 1: Page 1, line 9, leave out from ("a") to ("to") in line 11 and insert ("public authority").

The noble Lord said: Before I speak to this amendment, I wish to have a mild grumble about the lack of information we will have from the Government to enable us to look at the amendments to the Bill. The position is that the Minister made the statement of compatibility with the European Convention on Human Rights on the face of the Bill, as is required by Section 19 of the Human Rights Act. From time to time, on all sides of the House, we have sought to develop a practice whereby we obtain Ministers' reasons for their compatibility statements so that when we legislate we are clear that there will be proper compliance with the relevant convention rights.

I wrote to the Minister before Christmas asking whether we could be provided with that kind of information by 4th January. I was told that there was no prospect of it because of Christmas and overwork. That is fair enough and I perfectly understand the administrative problems of the Home Office. However, the position is that we do not have anything like the kind of reasons from the Government to enable us, when we legislate, to be satisfied that the Human Rights Act is being properly complied with.

In order to try to extract their reasons from the Government, what I have done is to place a note—I am afraid it is a lawyer's note—on the legal concept of indirect discrimination in the Library. It is also in the Printed Paper Office. I gave it to the Home Secretary yesterday when he was kind enough to meet me and others. I asked that we be provided with chapter and verse before Report stage. It is obviously hopeless to seek to obtain that information at Committee stage, because it is now too late, although I have used my best endeavours to obtain it. My note identifies the particular issues.

Last night, I bleated about all that in the debate on the Unstarred Question of the noble Viscount, Lord Colville, pointing out that we would reach the stage today, unless the Government produced reasons, where we would not be properly informed. The noble Lord, Lord Bassam, kindly handed me a piece of paper of his own speaking notes on the subject. I shall not take the Committee's time by reading it out but it does not adequately deal with the issues I have raised. I begin with that and it will run through our debate because from time to time on some amendments issues will arise as to whether what the Government propose to do is compatible with the guarantee of non-discrimination in the Convention on Human Rights, the right of access to the courts in Article 6 of the convention and the right to an effective remedy under Article 13.

The Earl of Onslow

I intervene solely to assist the noble Lord. Would it not be helpful if the noble Lord, Lord Bassam, could say why he has not produced the information, or why his department has not done so? Had they wanted to, undoubtedly they could have. It strikes me that this is a treatment of Parliament which is not satisfactory.

Lord Lester of Herne Hill

I did not want to put on further pressure than I have already because I know that a member of the noble Lord's Private Office indicated just after lunch that he had misunderstood. There has been some kind of error inside the administration. That is perfectly understandable. As long as we get the information before Report stage, not at Report stage, we will be in a better position. So if I may, I shall not pursue that further at this stage.

I turn to Amendment No. 1 which deals with what, on the face of it, seems to be a technicality with which I can deal briefly. It seeks to define "public authorities" for the purpose of the Race Relations Act in the same way as the term is already defined in the Human Rights Act, rather than by using a prescribed list of public authorities, to be added to from time to time in a schedule.

Unlike the Data Protection Act 1998, the Freedom of Information Bill and some of the devolution legislation, the Human Rights Act defines a public authority in broad terms to include any person certain of his functions or functions of a public nature. The noble and learned Lord the Lord Chancellor, in introducing that part of the Human Rights Bill, explained: We think that it is far better to have a principle rather than a list which would be regarded as exhaustive".—[Official Report, 24/11/97; col. 796.] He later commented at col. 808 that the principle was deliberately broad, because we want to provide as much protection as possible for the rights of individuals against the misuse of power by the state". The Race Relations (Amendment) Bill implements one part of the European Convention on Human Rights which guarantees non-discrimination in the enjoyment of other convention rights; for example, the right to education; the right to liberty without arbitrary arrest and stop and search; the right to a fair trial; the right to property, including the allocation of social security in some contexts, and so on.

Under Section 6 of the Human Rights Act, a public authority defined in the very broad way that I have described has a duty to comply with the human rights convention as regards non-discrimination. It is therefore essential to have a definition in the Race Relations (Amendment) Bill which captures all public authorities which would be captured by the Human Rights Act 1998; otherwise, there will be a gap. If in any part of the list prescribed by Ministers under the schedule there is a public authority that is not a public authority for the purposes of the Human Rights Act there will be a gap. Litigation will be required to try to fill the gap and—God forbid—a case may be brought before the court in Strasbourg if that gap is not properly filled. There will be a great deal of legal uncertainty. There is no reason in principle why the same definition in the Human Rights Act should not be used in this Bill.

We may be told by the Minister that that is not the way it has been done in the Data Protection and Freedom of Information Bills because the Government want to achieve legal certainty by listing public body by public body exactly which is caught. But the price of such legal certainty is over-specificity. Unless one lists comprehensively every single public authority that exercises functions of a public nature, the Government are bound to leave out of account some bodies that are meant to be caught by the European Convention on Human Rights and the Human Rights Act. Therefore, the purpose of this and the related amendments is to bring the definition into line with the Human Rights Act. I beg to move.

3.15 p.m.

Lord Cope of Berkeley

I have sympathy with the complaint made by the noble Lord, Lord Lester, at the start of his remarks about the lack of reasons from the Government about compliance with the ECHR. I should like to add two comments. No doubt in the course of the Committee stage we shall, with the assistance of the Minister, be able to draw out the reasons. I agree that that is less satisfactory than being allowed to see them in advance, but we shall attempt to do that. I should also like to express gratitude to the noble Lord, Lord Lester, for his helpful courtesy in circulating not only the note that has been placed in the Library but also other material in support of the views that he intends to express.

I turn to the amendment itself. At this stage I should like to put two questions to the Minister. First, why has the Home Office chosen this rather cumbersome way to define "public authorities" in comparison with the rather neat way that is adopted in the Human Rights Act? Secondly, what is the practical difference? Who is to be left out of the one but included in the other? As to the first question, I do not believe that to follow one course of action—to set out in the schedule all the departments and so on—is merely a stylistic preference. This cumbersome formula must have been chosen deliberately, I assume by Ministers. No doubt officials advised Ministers that this was the best route to take, but from the start Ministers would have been aware of the definition in the Human Rights Act and that this matter would be controversial. It seems to me that to follow the more cumbersome route rather than the neater one suggested by the amendment is a rather odd decision.

That leads me to the second question: the difference in practical terms. Do the Government believe that, arguably, departments, agencies or public authorities of some kind should in that way be deliberately left out of the Bill for some reason? I realise that subsection (5) provides for a future extension to cover additional departments if that should arise either from reorganisation of government, which happens all too frequently these days, or because something has been inadvertently omitted. To legislate in this way is unsatisfactory. There are now far too many statutory instruments. We have reached the stage where in most cases looking at an Act as passed by Parliament is not much use; one must look at the annotated Act with all the statutory instruments in footnotes, et cetera. There are so many statutory instruments that unless one looks at the latest version one cannot be sure that one has the law as it is. Obviously, that is good for legal publishers and those who write legal textbooks—perhaps some Members of the Committee are concerned with that—but from the point of view of the public who need to know the law and those who try to run businesses and other operations, including lawyers, but not necessarily because it is such a complex field, I do not believe that this is the most satisfactory way to compile the statute book.

One of the differences between the two definitions is that one leaves marginal decisions in the hands of the courts if one follows the human rights route. If there is a question as to whether some body may or may not be included in the provisions, that decision will be left to the courts. That takes one back to the point about legal certainty to which the noble Lord, Lord Lester, referred. But to achieve it in this way has other dangers. I believe that the Committee will be greatly helped if the Minister can set out the practical effects of doing it this way, in terms of the number of departments included or left out, and explain why the Government have chosen this particular route.

Lord Avebury

Before the noble Lord sits down, does he agree that in any case the question of whether or not a body is a public body must be dealt with by the courts under the Human Rights Act? If there is no difficulty under that Act, equally there cannot be under this Bill.

Lord Cope of Berkeley

Any of these matters is liable to come before the courts. Under the Human Rights Act, such matters are now liable to come before the courts in this country, but they can in any case come before the courts on the Continent.

Lord Peston

Perhaps I may be permitted to put one question for clarification so that I may follow the debate. Am I correct in understanding that at the moment we are debating only the set of public authorities which will fall within the ambit of subsequent provisions and we are not yet considering what those public authorities should do and how they should behave? We are almost artificially separating the public bodies from their modes of behaviour. Am I right to interpret the contribution of the noble Lord, Lord Lester, as dealing with that point?

Lord Lester of Herne Hill

If I may help the noble Lord, Lord Peston, that is exactly right. At the moment we are dealing with how one defines which public authorities will be liable for the extended duty rather than the scope of the duty in substance and choosing between an inclusive and an exclusive definition.

Baroness Howells of St Davids

I should like to speak in support of Clause I of the Bill and the amendments to which I have put my name. I thank my noble friend the Minister for the very constructive way in which he and his colleagues have conducted the debate so far.

At Second Reading, your Lordships may recall the debt of gratitude I conveyed to the Government for having the courage to set up the inquiry into the death of Stephen Lawrence and for their actions to date. As we know, the Government went further than the recommendations made in the report in committing the Government to bring all public services within the law. This Bill shows that the Government have delivered on what they said they would do. I expressed my gratitude to the Government for indicating that they had not closed their mind to widening the scope of the Bill to cover unjustifiable indirect discrimination if they could be persuaded that its inclusion would be workable.

I am pleased that the Government have kept to their word, have been open to alternative views and have listened to ways in which this Bill can be improved. I am aware that my noble friend the Minister has met a number of individuals from both inside and outside this House to discuss ways in which the Bill can be improved. I should like to commend him on that.

I too want the Government to get this Bill right. It is in that spirit that I put my name in support of the amendments tabled by the noble Lord, Lord Lester of Herne Hill, and other noble Lords. The noble Lord, Lord Lester of Herne Hill, has dealt with the legalistic aspects of these amendments with the authority of one who has been one of the main architects of the Race Relations Act and who has spent many years working in the field of human rights law.

I support wholeheartedly the other aspects of Clause 1, including the alternative definition of "public authority". I should also like to focus on the omission of indirect discrimination. That is the main defect of the Bill, as far as I am concerned. I do not have the authority of either a lawyer or a medical person, but I can speak with some authority on this issue, having worked with ethnic minority communities. I should like to draw on that experience in my comments. The Committee may be aware that I have worked in the field of race relations for more than 30 years. My personal knowledge has been crucial in my approach to the Bill. In particular, the connection of the Macpherson inquiry report with unjustifiable indirect discrimination in the police force was central to my decision to support these amendments this afternoon.

The Committee will be aware that the focus of the Macpherson report was the prevalence of institutional discrimination. By omitting to outlaw unjustifiable indirect discrimination in critical functions of public authorities, the Bill seriously inhibits the ability of families like the Lawrence family to challenge institutional racism in future.

The defining feature of the Macpherson report was the acceptance that institutional racism is commonly indirect. I should be grateful to know from my noble friend the Minister whether the Government have come to a different conclusion because I am at a loss as to how any other conclusion could be found. I must say that I have not been convinced by the Home Office briefings that suggest that the Lawrence case concerned direct discrimination. The disastrous failure to bring the killers of Stephen Lawrence to justice stemmed from attitudes and practices in the investigation of the crime which could have played a similar part in many other investigations into the deaths of other black people, such as Michael Menson and Ricky Reel. Direct discrimination was not established in any of these cases.

Extending the law to deal with indirect discrimination in the private sector was the great innovation when the present Race Relations Act was passed in 1976, reflecting the growing recognition that it was the hidden, often unconscious, kinds of discrimination which were the most insidious and widespread. To expose these the Act gave enhanced investigative powers to the Commission for Racial Equality. Unless indirect discrimination in our public authorities can also be targeted, the Commission for Racial Equality will be unable to carry out the very type of investigation that the Macpherson report showed to be needed.

If the Race Relations Act had from the outset fully covered the direct and indirect discriminatory aspects of public authorities, the Commission for Racial Equality could have conducted a formal investigation into operational policing some years ago. I have no doubt that we could have started to tackle institutional racism in the police and been in a position to make less likely the kind of insidious covert forms of discrimination that the Lawrence family and others have experienced.

The Macpherson report established in the mainstream the concept of institutional racism. I am at a loss as to why the Government are now hesitating on the opportunity presented by that report to put a legal framework in place which will allow the sort of unjustifiable indirect discriminatory practices raised in that report to be challenged.

The Home Secretary has asked for a workable solution. Clause 1 strikes out the omission extending Section 1(1) (b) of the Act to public authorities. If it were the case that the Government remained less than fully convinced of our arguments to include unjustifiable indirect discrimination, could they not decide to add an extra control by requiring that all such cases of alleged indirect discrimination contrary to the proposed Section 19B were brought only with either the approval or assistance of the Commission for Racial Equality? It could be argued that this would be consistent with the Commission for Racial Equality's strategic role.

I believe that the focus of the Government's concerns should not be on excluding Section 1(1)(b) of the Act but on addressing what are to be the areas of justification or defence under the Act. To reiterate the point, indirect discrimination is unlawful only if it cannot be justified. I cannot believe that it is the intention of the Government to allow unjustifiable indirect discrimination in our public services to continue, especially when it has been unlawful in the private sector since the 1970s.

The Commission for Racial Equality has approached Robin Allen QC, an eminent human rights counsel, for an opinion on the Bill. I understand that his opinion will be made available to the Government. In that legal opinion, Mr Allen discusses the possible future implications arising from Europe if indirect discrimination is excluded from the Bill.

Your Lordships will be aware that the case law of the European Convention on Human Rights and the European Court of Justice makes it clear that the concept of discrimination in convention and Community Law is not limited to direct discrimination. Both recognise that there may be situations in which disguised or indirect discrimination may arise and may need to be justified. Accordingly, any limitation in the extensions to be made by the Bill to the Act to "direct" discrimination or victimisation are likely to rub up against either Community or convention law sooner or later. In those circumstances, Mr Allen says: unless the limitation is itself objectively justified, the provisions of the Act (so amended) will have to give way sooner or later to these superior sources of law". While I, too, recognise the concerns of the Government about the need to justify policies that have an adverse impact, surely this is no more than the obligation on any modern, democratic government based on human rights.

The Home Secretary said in another place in February last year that he acknowledged that there was a long way to go to make Britain a "beacon of equality" and he made it clear that the Government must and will do more. The very limited scope of the new Bill could be a missed opportunity for more far-reaching reform and disappoint the reasonable expectation he created last year.

I should like to assist the Government to make Britain truly a beacon society for the rest of the world to follow. We want to help the Government to deliver comprehensively now and out of conviction. I do not want the Government to be forced to deliver in a piecemeal fashion, some time in the future, out of fear of legal challenge from Europe.

I will be hard-pressed to find people from ethnic minority communities who are content that unjustifiable indirect discrimination has been excluded from the Bill. That may be because we in the black community have lived and experienced institutional racism in our public authorities on a daily basis. Any half-way or partial measure could be received as a mockery of those experiences.

I say to my noble friend the Minister that Britain's ethnic minorities do not understand the Government's hesitation in taking this opportunity seriously to challenge institutional racism. I know that the Government will want to be the champion of their hopes and aspirations. The Bill has the potential to be one of the Government's flagship Bills. But I fear that if we miss this opportunity we will not only have taken the shine off the beacon society we all so dearly want; we may have missed that opportunity for perhaps another generation. I support Clause 1.

3.30 p.m.

The Earl of Onslow

I support the noble Lord, Lord Lester. I rise to speak from what could be regarded as an old-fashioned Conservative point of view, something which cur present lord and master finds deeply offensive. But I shall let that pass. To me the issue is simple. If you expect people to be loyal subjects of the Crown, they should all be treated equally. We have been a welcoming society for a very long time. You do not have to go all that far back to see the enormous contribution made to our country by some of the Ugandan Asians. You do not have to go very far back to see the great contribution which a large number of Caribbean people have made for the benefit of the United Kingdom. Therefore, it follows, as night follows day, that they have to be treated equally before the law so that they can become loyal subjects of the Crown. If we say, as the amendment says, that no one may discriminate, it is much clearer than saying, "Only X, Y and Z may discriminate, and the Secretary of State may alter it afterwards".

We want race relations in this country to be good. From a Conservative point of view I want it, because I recognise the contribution made by the Huguenots, by the Jewish immigrants in the 1890s, by the refugees from Hitler's Germany and by the Ugandan Asians. They have all enriched our society. Therefore, they have to be treated equally and they have to be treated as loyal subjects of the Crown. The amendment would make it much easier for that to be the case rather than the Secretary of State, by order, altering the list of who may or may not discriminate. I therefore support, from a Conservative point of view, the point raised by the noble Lord, Lord Lester of Herne Hill.

Baroness Whitaker

I wish to add a dimension to this debate. It would be helpful if we took account of the views of senior police officers who are particularly concerned with improving race relations. They are tasked with changing police culture. I confirm the view of my right honourable friend the Home Secretary that to exclude indirect discrimination is certainly not the express wish of the police. On the contrary, there is no police pressure to exclude indirect discrimination. There is a view that in any case the Human Rights Act gives the right to challenge indirect discrimination on the part of public authorities. There is also a view among senior police officers that the definition of "public authority" should be the same as that provided in the Human Rights Act. Indeed, these views go further. I have heard it said that it is essential that indirect and institutional racism should come within the scope of the Bill and that their absence would undermine the ability of the police to manage race relations. Inclusion would help them to have a more informed and effective strategy.

On the different issue of government policy being second guessed by the courts—

Lord Lester of Herne Hill

I am most grateful to the noble Baroness for giving way. In the debate we are dealing with two separate issues. In due course I shall move an amendment which deals with indirect discrimination. Amendment No. 1 deals with the definition of "public authority". Although it is helpful to have the other points raised, which will save time later when we come to indirect discrimination, it may be helpful to the Committee if I indicate that that is the distinction between the two amendments. We have not yet reached the amendment on indirect discrimination.

Baroness Whitaker

I apologise for being out of order. I simply followed my noble friend Lady Howells. I wanted also to refer to the view of the police that the Human Rights Act definition should be the one used. I shall return to my point later.

Lord Peston

I am indebted to the noble Lord, Lord Lester, for speaking twice. I was full of trepidation at the thought of taking part in the debate at all but at least I now understand the topic we are now on. I take it that we are on the topic of which set of public bodies we are talking about. Perhaps I may say substantively that the noble Earl, Lord Onslow, put the point as simply and as clearly as it could be put—that the presumption should be that no one is excluded from the set of rules and modes of behaviour which we shall debate later on. If anyone should be excluded, the case should be specifically for such a body rather than the other way round. Therefore, I have to say to my noble friend the Minister that I think that he has got this the wrong way round. The presumption should be everyone "except"; and then he ought, or someone ought, to argue the "except". He would have a very difficult job arguing the "except", but that is the onus placed on the Minister. I strongly support the amendments and everything that has been said. I hope that my noble friend will go away and reflect on the point that, logically, the Bill has been drafted the wrong way round.

Lord Avebury

The danger my noble friend draws to the attention of the Committee is that under the government formulation some entities which have functions of a public nature will be inadvertently omitted from the schedules before us and from any instruments laid afterwards by the Secretary of State under new Section 19B(5). At the same time those authorities will be covered by the Human Rights Act.

When the Minister replies will he sketch out this scenario? What happens if, under the Human Rights Act, an organisation is designated as an authority having functions of a public nature but it is not in any of the schedules or instruments published under the Bill? There are bound to be such cases, otherwise the Government would have no objection to the amendment. The clear implication is that there will be authorities which are not covered by the Bill but which the courts deem to have functions of a public nature under the Human Rights Act.

It is important that this point is clear. If the courts decide that such a body falls under the Human Rights Act, what are the consequences? The Minister brings forward a statutory instrument to designate that public authority. However, there is a gap between the court's decision under the Human Rights Act and the passing of the instrument by Parliament. Actions taken by the authority having functions of a public nature would be perfectly lawful in that gap but would be made unlawful once the instrument is passed. That is an intolerable situation.

In the light of that argument, does the Minister consider that Parliament would do well to amend definitions in the Data Protection Act and the Freedom of Information Bill? I believe that a common definition of a "public authority" should extend throughout legislation under which human rights problems may arise. The Human Rights Act had not been passed when the Data Protection Act and the Freedom of Information Bill were tabled. If we had been in the present position when we considered the Data Protection Act and now the Freedom of Information Bill, would we not take the same view as my noble friend on the amendment? I shall be grateful if the noble Lord can deal with that matter in his reply.

3.45 p.m.

Lord Bassam of Brighton

This has been a somewhat longer debate than many of us had anticipated. I pay tribute to those who contributed to the debate. Although it has been wider in range than the noble Lord, Lord Lester, or I anticipated, it has been useful. I intend to deal with the points properly raised by the noble Baronesses, Lady Howells and Lady Whitaker, when we consider the second group.

Lord Peston

I hate to interrupt the Minister, but does he insist on replying to everything said? We shall debate, I hope at greater length, indirect discrimination. Some of us may find if difficult if my noble friend replies twice to the debate. It is entirely up to him. I merely ask whether he wishes to do so twice.

Lord Bassam of Brighton

If my noble friend will bear with me, I was about to say that I intend to deal with those matters relating to indirect discrimination under the second group of amendments.

I touch also on the understandable grumble of the noble Lord, Lord Lester. I apologise to him. There has been an exchange and crossing of correspondence between us. We sought to clarify the issues he raised. He graciously wrote to my right honourable friend the Home Secretary and shared generously his view through the Library of the House. We clearly need to address the points he raises, and shall be happy to do so, either directly or through correspondence. No doubt those issues will inform the course of debates on this important piece of legislation. I trust that he will accept my apology as sincere. I hope that we can proceed, as we have done, in the best traditions of this House.

On the content of the amendment, I wish to make the Government's position clear. These amendments would adopt the Human Rights Act approach to the definition of public authorities. In so doing, they would leave it entirely to the courts to interpret whether or not a function is of a public nature—a point observed by the noble Lord, Lord Cope. We believe that this approach is entirely appropriate in respect of the Human Rights Act and is the best way of meeting our aim of giving people access to their convention rights in the United Kingdom against bodies for whom the Government could be held responsible in proceedings before the convention institutions in Strasbourg. However, the Government do not feel that it is appropriate for this Bill.

The noble Lord, Lord Lester, made reference to other pieces of legislation in which the list approach, if it can be so described, has been adopted: the Data Protection Act; the Freedom of Information Bill currently before another place; and in devolution legislation. The list approach is accepted not only in this field of law but in other areas too.

Our view is that there is clarity. If a body appears on the list there can be no doubt in anyone's mind that it is a public authority to which new Section 19B applies. There can be no doubt. It is listed. It is clear. It is in the schedules. The Act adopts a list approach at Section 19(6) in relation to the educational bodies that are covered by its current provision. That list brings clarity there. In addition and looking ahead, a list approach may serve a useful purpose in bringing clarity in the context of a duty to promote equality. That point needs to be carefully understood. It will specify precisely who owes the duty to promote equality. Indeed, I note that Amendment No. 23, in the name of the noble Lord, Lord Lester, in proposing an amended duty to promote race equality, which we shall discuss, refers to the list of public authorities. In a sense, we are almost there, even in the noble Lord's thinking.

I also note that the amendment appears to be narrower than our provision because it states that in relation to a particular act, a person is not a public authority if the nature of that act is private. Thus, some functions of public authorities which would be caught by new Section 19B as it stands, would be excluded. As noble Lords will be well aware—there has been reference to it in the debate—any gaps which occur in the list can be filled by use of the order-making power under new Section 19B(5) and (6) and public bodies can be listed by class of body.

There is no reason to list every public authority or public body individually. That approach gives us the flexibility to which many Members of the Committee have referred. It will give us the cover here. It is not the Government's intention to exclude some public bodies. As we know from political experience over many years, what is defined as a "public authority", a public body, can from time to time change. Therefore, the list approach through the order-making power gives us flexibility and will enable us where appropriate to expand the list of bodies covered by the legislation. I trust that on that basis noble Lords will not wish to press the amendment today.

The Earl of Onslow

Before the Minister sits down, will he answer the following question? How many public bodies will be left out? If the answer is none, why do we have a list?

Lord Bassam of Brighton

I am not aware that we intend to omit any public bodies. We seek to establish clarity and certainly. The list approach makes crystal clear at the outset what is defined as a public body in each and every instance.

Lord Avebury

Will the Minister please deal with my question? What happens in the intervening period between classifying a body as having functions of a public nature under the Human Rights Act and the tabling of an instrument to bring this legislation into line with it?

Lord Bassam of Brighton

We would expect that the bodies which have been defined as "public authorities" in terms of the Human Rights Act will be the same bodies as those covered by the Race Relations Act. We are trying to specify and be more precise. If there is a problem with our approach, I shall be more than happy to look again at the point that the noble Lord raised and to clarify more precisely in correspondence how we shall deal with the difficulty which he believes he has identified.

Lord Lester of Herne Hill

We are grateful to the Minister for his reply, but I remain perplexed. Perhaps I may explain why and hope for further reflection. The starting point is the common law.

Under the common law, any public authority which discriminates on grounds of race or sex is in breach of a fundamental common law principle. That was established a couple of years ago in the Privy Council. Therefore, the starting point is that every body which the court would regard as a public authority—that is, a body of the kind captured by the Human Rights Act definition—whether in a list or not, must not discriminate on racial grounds, whether directly or indirectly, at common law.

The Bill merely extends direct discrimination obligations by way of statute to all public authorities rather than to only some of them. On that basis, I cannot understand the hesitation about adopting a broad, inclusive definition rather than a statutory list definition. I understand why in the Data Protection Act and in the Freedom of Information Bill a list approach has been adopted. The reason is that onerous, widespread and complex obligations are being imposed on various public authorities, sometimes in stages and sometimes requiring subordinate legislation and orders. Therefore, it makes a great deal of sense to use a list approach in such complex legislation. However, at the moment, all we are dealing with in the Bill is direct discrimination. There is no suggestion of a statutory duty being imposed upon public authorities which might make it necessary to have a list.

Therefore, for those reasons and because of the gap which will open up between those which are in the list and those which are in the Human Rights Act definition and the consequences of that, I hope that the Government will reflect further and see whether we can use the Human Rights Act definition. At this stage and after this important debate there is time for furl her reflection on all sides. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lester of Herne Hill moved Amendment No. 2: Page 1, leave out lines 13 and 14.

The noble Lord said: Amendment No. 2 deals with indirect discrimination. It has already been spoken to most helpfully by the noble Baroness, Lady Howells of St Davids, whose name is attached to it. I believe that it is the most important amendment with which we shall deal in Committee today.

What is at stake transcends any technical legal questions. What is at stake is the need for effective redress for the victims of unfair racial discrimination by the Government and public authorities and the need to protect and win the confidence of vulnerable ethnic minorities in the wake of the Stephen Lawrence scandal and the recommendations of the Macpherson report. What is also at stake is the need for Ministers and their departments to be fully accountable to the rule of law, interpreted and applied by the independent judiciary.

The central question is whether Ministers, their departments and other statutory bodies acting on behalf of the Crown should be subject to the same duty to comply with the same legal principles of non-discrimination in serving the public—for example, through the Immigration and Nationality Service, or the Prison Service, or the Police Service, or Her Majesty's Customs and Excise, or in providing social security services—as are the providers of services which are covered by Section 20 of the Race Relations Act 1976. In other words, should the citizen be entitled to the equal protection of the Race Relations Act and to equal access to justice against the state and its agents as against other institutions and services which discriminate unfairly? Or should the citizen continue to be left with less statutory protection against Ministers of the Crown and their departments, when they exercise their statutory and prerogative powers, than against other bodies where government-imposed practices, procedures and rules are indirectly discriminatory and cannot be objectively justified? Those are the central questions that are raised by the amendment.

The answer given by Macpherson, in the context of policing, was unequivocal. It recommended that the full force of the Race Relations Act should apply to all police officers; the full force and nothing less. The Government went further—and they are to be commended on doing so—promising that all public services would be brought within the scope of the legislation. The full force of the legislation includes forbidding indirect as well as direct discrimination; that is, practices and rules which apply equally to all in a formal sense, but which hit disproportionately at ethnic minorities and cannot be justified.

I see the noble Baroness, Lady Lockwood, in her place and I am reminded that my comments will apply in exactly the same way to the Sex Discrimination Act when it comes to be amended in due course. We are dealing now with race discrimination, but we shall then be dealing with indirect sex discrimination by government departments.

The Bill as it stands falls far short of the promise to apply the legislation in its full rigour. The new Section 19B(2) will permit much of the public service to operate indirectly discriminatory practices without having to justify them to the victims, the courts and the CRE. Instead of having a greater responsibility because of the public nature of their functions, Ministers, departments and other statutory public bodies are to be less legally responsible than providers of services such as banks, building societies or local authorities because they will not be liable for unjustifiable indirect discrimination.

That leaves victims of indirect racial discrimination by the public service without a remedy. British Muslims, for example, have no legal remedy for unfair religious discrimination. They are protected under the 1976 Act only if they are victims of racial discrimination. It is here that the concept of indirect racial discrimination is so essential. Yet unless the Bill is amended—and I hope that the Minister will confirm this—it will provide no protection for British Muslims where government-imposed practices and procedures have a disproportionate adverse impact upon them.

If the Government oppose the amendment, I hope that the Minister will explain the principle which justifies the denial of equal protection of the law and equal access to effective remedies for members of the Muslim communities—more than 1 million people in this country—and for other vulnerable ethnic minorities.

If the amendment is accepted, it will ensure that the public service is subject to the same requirement to justify indirect discrimination as are private and public sector providers of services under Section 20. That section makes it unlawful for any person concerned with the provision of goods, facilities and services to the public or a section of the public to discriminate directly or indirectly against ethnic minorities.

The great architect of the 1976 Act was my noble friend Lord Jenkins of Hillhead. I had always believed that the Act's provisions were meant to apply fully to the whole of the public service. That is why, for example, we wrote into Section 41 a special escape clause where a Minister directly authorises a requirement or condition which is discriminatory. The gap in the 1976 Act did not arise because Parliament created a deliberate gap but because of the restrictive way in which the Law Lords, by a three to two majority, interpreted Section 20 in the case of Amin in 1983. I deal with that matter in the note which I have placed in the Library, but in Amin, the complaint concerned alleged sex discrimination in immigration control. The Law Lords, by a majority of three to two, decided that Section 29 of the Sex Discrimination Act 1975, which is in identical terms to Section 20 of the Race Relations Act 1976, applies to discriminatory acts carried out by the Crown only if they are of a kind similar to acts which may be carried out by a private person.

Amin created a serious gap which the Bill fails to remedy. Direct and indirect discrimination are unlawful if carried out by those concerned with providing services to the public. But if Amin is correct, that does not include other forms of public service; for example, those involving regulation and control by government departments and other public authorities. There is no coherent distinction at all—I defy the Minister to come up with one—between those different forms of public service. The distinction made in Amin is arbitrary, irrational and confusing. I am confident that my noble friend Lord Jenkins of Hillhead would never have drawn such a distinction, or intended to, in the 1976 legislation. How can one explain the distinction between the service provided by the police in giving advice and assistance to the public—which is covered by Section 20—and the service provided by the police in preventing and detecting crime, in keeping the peace, or in helping to prosecute alleged offenders, which is outside the scope of Section 20 if Amin was correctly decided? The Bill as it stands preserves that irrational distinction as regards liability for indirect discrimination.

It is likely, in my view, that Amin would be reversed if the Law Lords had the opportunity to reconsider the decision. I say so for a number of reasons which I have set out in the note, prepared for the convenience of the Committee and available in the Library. Perhaps I may summarise a few of them briefly. One reason is related to the Human Rights Act 1998 which will require the courts to interpret all existing and future legislation, where possible, compatibly with rights guaranteed by the convention, including the right to non-discrimination guaranteed by Article 14 and the right of effective access to the courts in the determination of the civil right to equal treatment without discrimination guaranteed by Article 6.

The arbitrariness of the Amin distinction violates those convention guarantees, as does the Bill, by immunising public: service from the duty to justify indirectly discriminatory practices to the individuals affected, the courts and the CRE, and to provide effective redress to victims of unjustifiable indirect discrimination. Tie European Court of Human Rights has already ruled in the case of Tinnelly—a case in which I appeared for the applicants, who were Northern Ireland Catholics challenging a bar which prevented them from having the merits of their claims of religious discrimination dealt with by the tribunal in Northern Ireland—that a statutory immunity of that kind, blocking access to courts for religious discrimination claims related to national security breached Article 6 of the convention.

The concept of indirect discrimination is well recognised in the European convention and in international human rights treaties, such as the UN Convention on the Elimination of All Forms of Racial Discrimination and the UN International Covenant on Civil and Political Rights, which are all binding on the United Kingdom. Unless the amendment is accepted, our statute book will continue to authorise breaches of the UK's obligations under international and European law because the victims of indirect racial discrimination and sex discrimination will still be unable to obtain effective remedies for indirectly discriminatory acts by Ministers, government departments and statutory bodies acting on behalf of the Crown.

The Government accept that the application of the concept of indirect discrimination by the courts and the CRE has not resulted in over-intrusive or unworkable decisions. The concept has worked well in practice, except for the artificial limitations imposed by statutory definition and by the Amin case. There is no case at all in which the concept of indirect discrimination has been taken too far, unnecessarily hampering or fettering the exercise of discretion by providers of public services.

Opposition Conservative parliamentarians played a crucial role in defeating the first Wilson government's attempt, in the Race Relations Bill 1968, introduced by the noble Lord, Lord Callaghan, to create a statutory immunity for Ministers and government departments from liability for unlawful discrimination. I am delighted that I am making these remarks in the presence of my noble friend Lord Jenkins of Hillhead, but I wish that I were doing so also in the presence of the noble and learned Lord, Lord Hailsham of Saint Marylebone. In the debate in Committee in the other place, as Quintin Hogg MP, he was part of an all-party revolt joined also by Alex Lyon, later to be Minister of State, which removed the Crown's immunity that Home Secretary Callaghan wanted to maintain. After that defeat, there could be no doubt that Parliament intended the Crown to be fully bound by the duty not to discriminate unlawfully, and to be accountable to the courts for any breach of that statutory duty.

The remarks of the noble and learned Lord, Lord Hailsham, made during that debate remain apposite today: The whole experience of the last 45 years has been that the Crown has fought in every ditch against being made a party to litigation to which it is willing to subject the subject. Every time it has been wrong". If I may respectfully say so, we hope that today's Conservative Party will follow that tradition of insisting upon the application of the rule of law and the equal protection of the law in relation to the Government's attempt to be bound by only one kind of racial duty not to discriminate, rather than by both kinds.

On 22nd December the Minister sent me a letter explaining Home Office thinking, copies of which he has placed in the Library. I am grateful that the Minister has met me, as has the Home Secretary, and that he has met others also. The Home Office letter deserves to be quoted extensively. Since I am sure that the Minister would want to do so in his reply, I shall save him the trouble by referring to it now and commenting upon it. The letter begins by observing that the new provision in the Bill, will cover a much broader range of functions such as law enforcement, regulation and social and economic policies". That is, of course, correct and is a welcome extension, but as it stands it goes no further than a minimalist view of what the common law anyway requires—that Ministers should not exercise their powers in an unfairly discriminatory manner.

The letter continues: Indirect discrimination as an approach does not fit well". To explain this curious assertion, the letter gives law enforcement as a case in point, taking the example of stop and search. I quote: where there is no particular requirement or condition imposed upon an individual being stopped and searched and at least no requirement that cannot be complied with". That may very well be true, in which case the police would not be affected in their operational activities by being obliged to comply with the duty not to discriminate indirectly against ethnic minorities. However, it is not difficult to imagine other situations where there might be indirect discrimination which requires to be justified; for example, if police reasons for refusing bail were based on satisfying requirements or conditions that inadvertently hit at members of a particular ethnic group.

The fact that such situations will be rare is not a justification for applying Section 1(1)(b), as at present, only when the police are giving assistance to the public, as distinct from when pursuing and arresting or charging suspected criminals, or making representations about bail. A point already made by the noble Baroness, Lady Whitaker, in relation to the police's own attitude is that, in performing their vital role in detecting crime and keeping the public peace, it would not hamper the police to be subject to the full provisions of the Race Relations Act, as the Machperson report recommended. Indeed, police authorities across the country are already taking steps to eliminate any racial discrimination, direct or indirect, from their practices and procedures. They recognise the need to do so for the sake of having the confidence of the whole community. If they are alleged to have discriminated indirectly, the police will have a complete defence if they can show that their practices and rules are justifiable.

The Home Office letter continues: Nor does this approach fit well in relation to policy implementation (as distinguished from the provision of 'services' which is covered)". It goes on: Any policy or practice of a public authority which imposed a requirement or condition on an individual and which had a differential impact on different racial groups could be challenged in the courts and would be unlawful unless it were justified".

We do not understand the principle upon which one can properly distinguish between what constitutes "policy implementation" and what constitutes the provision of "services" to the public. Surely the touchstone is, or ought to be, whether a Minister, a government department or any other part of the public services applies a requirement or condition which disproportionately hits at members of a particular racial group and cannot be justified. If banks or building societies were to impose such a requirement as a condition of obtaining credit or a mortgage, they would have to justify their rule or practice under Section 20 read with Section 1(1)(b) of the Act. We do not understand why the Government should not be under exactly the same duty to justify an indirectly discriminatory rule or practice; for example, in relation to government funding of regional or community projects, hospital closures, immigration, nationality, or Customs and Excise rules and practices.

It should make no difference if the indirect discrimination is caused by "policy implementation" or the provision of "services" to the public, especially, if I may say so, because the Government are elected to be the servants rather than the masters of the people. By making the Government and the public service subject to the full force of the Race Relations Act, Parliament would provide the necessary sanction to encourage public authorities to review outmoded and unfair practices and rules. Surely that is in the interests of good government and sound public administration.

The Home Office letter continues: This could potentially include any age-based policy, because a high proportion of the ethnic minority population is young, and any requirement based on geographic location because of the different regional spread of racial groups for example. Not least challenges could be mounted to those policies, programmes and practices that are helping ethnic minority communities the most. The courts would be in the position of having to decide whether a policy was justified or not".

But surely if a government policy resulted in the imposition of an age requirement or a geographical requirement, the Government should not impose such a requirement if it cannot be justified. The role of the courts in having to decide whether such a requirement was justifiable, irrespective of colour or race, is the necessary consequence of a decision taken a quarter of a century ago by Parliament to make unlawful indirect as well as direct discrimination. Ministers and government departments surely should not be above the law. The citizen should be entitled to the equal protection of the law, to equal access to justice and to an effective remedy in relation to government-imposed practices and rules which operate unfairly in their impact on ethnic minorities.

As for the point which the Home Office makes about potential challenges to policies, programmes and practices that are helping ethnic minority communities the most, we shall deal with that in a later amendment so as to permit public authorities to take proportionate and necessary measures to ensure that the special needs of racial groups are met.

The Home Office letter concludes (and your Lordships will be happy to know that so, almost, do I!): Overall, therefore, the Government's preferred approach is to prohibit direct discrimination in the functions newly caught by the Act, to retain the flexibility to pursue policies and to oblige public authorities to promote equality in order to eliminate any unjustifiable indirect discrimination".

The Government's acceptance of the need to impose a positive duty on public authorities to promote equality and eliminate indirect, as well as direct, discrimination is welcome and much needed. It will be addressed by a later amendment. However, such a duty will not provide the individual victim with a remedy for the detriment suffered as a result of a government-imposed practice or rule which is indirectly discriminatory. The Government wish to retain flexibility in pursuing their policies, as we all do in our own spheres of activity. But the pursuit of flexibility cannot be at the expense of justice and fairness and the provision of effective redress to the victim.

We do not understand why a Government who introduced the Human Rights Act and claim credit for extending the Race Relations Act to all public authorities should shrink at the prospect of having to justify their own practices and rules through the legal process before independent courts in order to avoid the unfair effects on ethnic minorities of their policies. We hope that the Government will find the necessary political will to accept that the constitutional principles of equal protection of the law, of equal access to justice and of the equal right to effective remedies should apply to government-imposed practices and rules that discriminate indirectly. We submit that the Government's immunity from liability under Section 1(1)(b) should be removed. I beg to move.

4.15 p.m.

Lord Patel

My name appears in support of the amendments related to Clause 1 and moved by the noble Lord, Lord Lester of Herne Hill, and the other noble Lords whose names appear on the Marshalled List.

I, too, am not a legal expert and therefore your Lordships will forgive me if my understanding of legislative aspects of the Bill are poor. In the main I want to address how the clause will affect those who work in the National Health Service, particularly in relation to indirect discrimination. I confine my comments in respect of Clause 1 to the provision concerning the inclusion of unjustifiable indirect discrimination; that is, leaving out lines 13 to 14 of page 1 of the Bill. Those lines omit the extension of Section 1(1)(b) of the Race Relations Act 1976 to public authorities.

When I speak of extending the indirect discrimination provisions of the 1976 Act to public authorities, I speak about unjustifiable indirect discrimination. If the clause is accepted and included in the Bill, our public authorities could still discriminate indirectly if they could justify the action in law. If they could not justify such action, they would be subject to legal challenge. Can it really be the intention of the Bill to allow the public authorities to continue to discriminate indirectly where there is no justification in law for such an action? Is it reasonable to allow the public authorities to continue to discriminate indirectly and unjustifiably, especially when it has been unlawful for the private sector to do so since the 1976 Act was passed? Surely it is the role of the Government and public bodies to lead the private sector by example.

The Government have said that the inclusion of unjustifiable indirect discrimination in this Bill would prevent them implementing policies designed to meet the needs of particular groups; that the Government would be tangled in endless litigation over such issues that the floodgates would be opened to mendacious litigants. Surely, such arguments must have been used by opponents of the original Race Relations Act in the 1970s. Did the wheels of business and commerce grind to a halt? Has the private sector collapsed under the weight of mendacious litigants?

There is nothing in the way in which the law works at present which prevents the development of such policies in the areas already covered by the Act so long as those policies are justified.

Introducing an unjustifiable indirect discrimination provision into the new Bill would simply ensure that policy proposals are properly tested and finalised so that they meet the purposes for which they are designed. Far from entangling decision-making, such provision would help to establish the procedures and approaches needed to clarify the thinking of civil servants, Ministers and others responsible for the activities of public bodies and so provide for more focused and effective practices. That would certainly help those who work in the health service.

It goes without saying that if policies are properly focused, the justifications for the practices will be obvious and they will not be open to court challenges. However, if they are open to challenge, it will be because the policies are wrongly formulated and focused and will not, in practice, be meeting the aims which the policy-makers have set themselves.

I understand that these amendments have the support of the Commission for Racial Equality, the Law Society and others and the British Medical Association.

The intention of Clause 1 is to produce a clearer and more straightforward extension of the existing Race Relations Act which will place the emphasis on changing policy and practice rather than on litigation in relation to single acts of discrimination. Therefore, I believe that in time it will produce fewer rather than more litigious cases. The inclusion of provisions in respect of unjustifiable indirect discrimination has the effect of encouraging public bodies to review their practices in order to ensure that those practices meet most effectively the purposes for which that body was created.

One example of how that has worked under the provisions of the present Act includes distinction awards for NHS consultants. The criteria used by the health service for giving distinction awards—which involve extra payments—to NHS consultants favoured certain medical specialties where ethnic minority doctors were less likely to be working compared with specialties where such doctors were likely to be found.

After the Commission for Racial Equality informed the Department of Health that that was likely to be unjustifiable indirect discrimination, it was agreed that the balance favouring work of "national significance" as opposed to "outstanding contributions in a hard pressed post" in the selection criteria should be altered. The result is that medical excellence in vital specialties such as accident and emergency can now be properly rewarded not only for ethnic minorities but for all doctors, so encouraging better overall practice.

Using that same approach, the inclusion of provisions on unjustifiable indirect discrimination in the standards of best practice backed by legislation and laid upon public bodies will be a useful tool in improving the quality of their work.

I conclude by saying that yesterday I read a briefing from the Home Office entitled: Race Relations (Amendment) Bill: concerns raised about indirect discrimination". The briefing quotes the key recommendation of the Stephen Lawrence inquiry which states that, the full force of the Race Relations legislation should apply to all police officers". The briefing then goes on to assert boldly: We are implementing this recommendation in full". Is that correct? The "full force" of the race relations legislation, to my mind, means the full force of the Race Relations Act 1976. That means that the provisions relating to direct discrimination under Section 1(1)(a) and indirect discrimination under Section 1(1)(b) of the 1976 Act are applied.

However, Section 198(2) of this Bill states that, section 1 has effect with the omission of subsection (1)(b)". In effect that means that the reference to indirect discrimination as mentioned in the Stephen Lawrence inquiry is not included in the Bill.

Therefore I hope that the Committee will support Clause 1 which will not only honour in full the recommendations of that inquiry but will also be helpful to those working in other public authorities and bodies such as the National Health Service.

Lord Taylor of Warwick

Today's seed brings tomorrow's harvest and so in principle I welcome this Bill as an extension to the Race Relations Act 1976. I support the intention to make the police and other public authorities liable under the Act. But there is a problem. The Bill gives effect to only part of the recommendations of the Macpherson report on the Stephen Lawrence case. It will cover only direct discrimination and not the more significant indirect form.

The first step to any victory is fully to recognise the enemy. This Bill does not do that. That is why I support the amendment moved by the noble Lord, Lord Lester. Looking back can help us to see the future. Extending the law to tackle indirect discrimination was the great innovation when the 1976 Act was passed. That was mentioned by the noble Baroness, Lady Howells. It reflected the growing recognition that it is the hidden, often unconscious kinds of discrimination which are the most insidious and widespread. By understanding the need to fight indirect discrimination, the Act gave enhanced powers of investigation to the Commission for Racial Equality.

Let us not forget that the focus of the Macpherson report was on the prevalence of institutionalised racism which is more often indirect than direct. The abject failure to bring Stephen Lawrence's killers to justice stemmed from the attitudes and practices in investigating crime. The sadness is that it may well have formed a part in terms of investigating the cases of Michael Menson and Ricky Reel.

The reason that this issue is so fundamental to this Bill and why I support the amendment is demonstrated by what Richard Stone, a member of the Macpherson inquiry said. He said: We found no evidence of direct racism. What we did find was indirect racial discrimination". Unless indirect discrimination can be targeted, in my view the CRE will be unable to carry out the very type of investigation which the Macpherson report showed was needed. Indeed, the chairman of the commission, Sir Herman Ouseley, said that about the Bill. He said: 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". Should we simply ignore those views? The commission, in particular, would be unable to launch investigations into disproportionate numbers of black people who are stopped and searched by the police.

I understand it is claimed that some officers are now reluctant to stop and search people from ethnic minorities for fear of being accused of racism. However, the evidence shows that "stop and search" plays a minimal role in detecting crime. The actual rates of arrests—I stress the word "arrests"—of black people resulting from "stop and search" are significantly lower than those for their white counterparts.

I want to make it absolutely clear that I support the police. They have the difficult job of protecting our communities. However, the facts suggest that there is a need for more effective scrutiny of such police powers. There can be no better demonstration of how matters can go wrong than when Neville Lawrence, Stephen's father, was recently mistakenly stopped and questioned by the police.

Some say that it is easier to know how the shoe pinches if you wear it. A little while ago I decided to go for a training run at about 8 p.m. in the evening. After a few minutes a car pulled up behind me. As I looked round, all I could see were two headlights glaring in the dark. Then two uniformed police officers got out of the car and demanded to know where I was going. As far as I know it is not yet a criminal offence to go running, even though I was wearing an Aston Villa tracksuit! When I briefly explained that I was Lord Taylor of Warwick their attitude transformed instantly. The hostility and aggression was replaced by a rather flustered and faint apology. I believe that I and the officers concerned in that episode learned some lessons.

The Macpherson report gave the police an opportunity for a new start and a new heart. There is a clear perception in the black and Asian communities that they are not treated fairly. The Bill in its present form will reinforce that feeling. Let us make race relations better, not bitter.

4.30 p.m.

Baroness Prashar

I beg to support the amendment on indirect discrimination moved by the noble Lord, Lord Lester of Herne Hill. I strongly support the arguments which he has advanced in support of that amendment.

I was pleased to hear of the Government's decision to extend the scope of the Race Relations Act to public authorities, but was disappointed when I saw a serious flaw: the creation of an exception of indirect racial discrimination by public authorities, including the police.

Given the nature of the function of public authorities, it is vital that they are brought within the full scope of the race discrimination legislation. As someone who has been involved, over a number of years, in trying to tackle institutional discrimination, I believe that the actual concept of discrimination is the most important instrument in tackling institutional discrimination. I do not see why, 25 years on, public authorities should be above that particular law.

Direct discrimination is relatively easy to identify and deal with, but we all know that practices and procedures which have a disproportionate adverse impact and which cannot be justified are not only difficult to identify but also help to perpetuate institutional discrimination and inequality. If we as a society are resolutely committed to eliminating unjustified discrimination and making equality of opportunity a reality, I believe it is imperative that indirect discrimination by public authorities is brought within the scope of the legislation.

By making public authorities subject to the full force of the legislation, Parliament would do two things. First, it would encourage public authorities to review their practices, procedures and rules which may be discriminatory. Secondly, it would enable the Commission for Racial Equality to use a strategic law enforcement power to tackle indirect discrimination in key public sector functions and to challenge discriminatory institutional practices. That would be an effective illustration of our true commitment to eradicating discrimination.

I have thought long and hard but there does not appear to be a justifiable reason for not bringing public authorities within the full scope of the legislation. Indeed, the reasons put forward, which the noble Lord, Lord Lester, quoted from the letter from the Home Office, are not convincing. It is argued that any policy or practice of a public authority which imposed a requirement or condition on an individual and which had a differential impact on different racial groups could be challenged in the courts and would he unlawful unless it were justified. The key issue is whether a rule or practice can be justified. Currently, as we have heard, the private sector is bound by the legislation. I see no reason why the Government and public bodies should not be under the same duty.

The Earl of Onslow

I also rise in support of the noble Lord, Lord Lester. We have returned to the point of equality for all. As I said in relation to the previous amendment, we cannot expect ethnic minorities to be loyal subjects of the Crown if the Crown is entitled to discriminate against them. To introduce the concept of indirect racial discrimination may be nit-picking, but if we accept that it is necessary to abolish that by statute, it is absolutely pointless to say that. British Airways cannot do it but that the police and social services can. It is totally pointless to expect ethnic minorities to be loyal subjects of the Crown if they are not given equal opportunities in the Grenadiers or the Lifeguards. It is as simple as that. I am arguing from the old-fashioned, high-Tory point of view. I believe that the Crown should be subject to the law in the same way as everybody else.

I turn to a point made by my noble friend Lord Taylor, although I am not sure where it takes us. A couple of years ago I was stopped at Aldgate East tube station. Although I had a perfectly valid ticket, there was an argument with a bone-headed ticket inspector, who was white, and two heavies were standing there who later turned out to be plain-clothes plod. I promise you that they were just as rude to me as the police were to my noble friend Lord Taylor. When I told them who I was their reaction was exactly the same. A lot of what appears at first sight to be police discrimination is just crass police insensitivity and incompetence. Unfortunately, if one is in a slightly privileged social position, as both my noble friend and I are, they start to make different noises. I am not sure whether that statement defends the police or criticises them from another angle, but I am afraid that there is an element of insensitivity among the police at the moment.

If on that occasion I had been a black person—my great-great-great-grandmother was—I would immediately have accused those policemen of racial harassment, but they were just being extraordinarily insensitive, ill-mannered and incompetent. I concede that it was an isolated incident, but my main point is that we must support the equality of everybody to carry out non-discriminatory practices. I thought that the matter was first settled by Charles I, and, if not by him, that it was settled in the reign of William III. We should continue with those principles. I say that from a high-Tory point of view.

Baroness Whitaker

I would be grateful if the points that I made earlier, about respect for the police's views in favour of including discrimination in the scope of the Bill, could be associated with the debate on this amendment. Anxiety was expressed by my right honourable friend the Home Secretary when he spoke to us yesterday, that if indirect discrimination on the part of a public authority were included in the scope of the Bill, government policy would be subject to decisions of the courts. I sympathise, as a former civil servant. It would indeed be odd for the policies of an elected government to be treated in that way by appointed judges. But when we look practically at what might happen, my noble friend the Minister can be reassured that it would not be the policy of the departmental Minister which would be in the dock; it would be the nature of its implementation, in particular whether or not that implementation involved unjustifiable discrimination. That is not the same as second-guessing the policy of the elected government and therefore we can rest on that part of the amendment.

Earl Russell

The concept of indirect discrimination was summarised clearly by Oscar Wilde: one such accident might happen to anyone; but two savours of carelessness.

Here we come to the pertinent question raised by the noble Earl, Lord Onslow. Is it simply crass and incompetent policing or is it indirect discrimination? That is a question that must be put to a statistical test. If one part of the population is far more at risk of meeting incompetent and crass policemen than another part of the population, that, in practice, amounts to indirect discrimination.

Anyone who dies in police custody may be suspected to have met, at the best, crass and incompetent policemen. But the fact that people who are black are five times as likely to die in police custody as people who are white, must create at least a suspicion that there may be indirect discrimination involved. A person who is stopped and searched may simply be stopped and searched by misfortune or at random. But a couple of years ago—though I believe the figures are now a little better—one was seven times as likely to be stopped and searched in London if one was black than if one was white. That again must at least suggest the possibility of indirect discrimination.

The noble Lord, Lord Taylor of Warwick, referred to the stopping last week of Mr Neville Lawrence. Mr Lawrence made what I thought was an extremely sensible and level-headed comment on that. He said, "If the police had a description of a suspect at least vaguely matching my appearance, fair enough. If not, I would be rather worried". That seems to me to go to the heart of the whole issue.

We in this House are in a peculiarly good position to comment on this matter. The central evil here is police stereotyping. I rise as the third noble Lord in succession who has a story about having been stopped by the police. I was driving David Starkey home after agreeing marks on exam papers, driving through the back end of Islington rather slowly because I did not know the way. I was stopped by the police who clearly suspected we were on a drugs run. They asked me my name and address. I said, "My name is Russell and I live in Kilburn". It did not appear to reassure them. Then David Starkey, with his very highest moral tone, said, "This is Professor Russell; Professor the Earl Russell, and he is driving me home"; and the police reacted precisely as they did with the noble Earl, Lord Onslow, and the noble Lord, Lord Taylor of Warwick. But I mean no more disrespect to the other two noble Lords than I do to myself when I say that Earls are no more incapable of crime than other men; even on past history Earls Russell are no more incapable of crime than other men.

That sort of stereotyping leads police away from making judgments on the particular facts of the case. We see one side of the coin; they see the other. The noble Lord, Lord Taylor of Warwick, had the extremely interesting experience of seeing both sides of the coin at once. My point is that this is a bad coin; that this sort of stereotyping leads people away from evidence. If legislation can induce police to consider people as individuals and not simply as members of a category, whether favoured or disfavoured, that will be to our advantage.

I wish to make just one more point before I sit down. It is extremely dangerous in any body politic to have the idea getting around that the police, or indeed any other public authority, represent one part of the community at the expense of the other. That tends to bring enforcement of law into disrepute and makes keeping the peace difficult. I shall not go on about that point; it will be before us a good deal when we come to consider the Patten report on Northern Ireland. I do not want to have those problems either on the mainland or in London. By accepting this amendment, we will do something very much needed to avoid them.

4.45 p.m.

Lord Desai

I rise briefly to support the amendment in the name of the noble Lord, Lord Lester of Herne Hill. Let me reflect, first, on what the noble Earl, Lord Onslow, said, both in the first debate and just now.

It is important that an absolutely unambiguous commitment be made of no discrimination—no "ifs", no "buts", no exceptions. In 1858 when the East India Company was replaced by the Crown for the rule of India, there was a declaration by Queen Victoria. That was the first declaration which said, "I shall treat all my subjects alike, regardless of race"—she did not mention gender or ethnicity, but more or less said that.

The power of that simple statement was such that Gandhi was able to defend the rights of indentured Indian labourers in South Africa—on the strength of that statement alone; that statement had the force of law. He was able to say, "As subjects of Her Majesty"—or His Majesty depending on the period in question—"the rights of indentured Indians are protected. They are the same as the rights of South Africans". That was because the declaration was unambiguous and did not include exceptions.

I am sorry, but I do not understand why, when we have this great opportunity to amend race relations and when the public climate is willing to accept a radical step forward in race relations—as I said at Second Reading—the Government do not take a bold step forward, as the noble Lord, Lord Lester, said, and define "public authorities" generally and not exclusively and by this amendment make indirect unjustifiable discrimination unlawful. What is important is the matter of climate. The case of Neville Lawrence received a lot of attention today. Now we know that his being stopped was unjustified—and everyone acknowledges that stopping black people in posh cars on the suspicion that no black man can have a posh car unless he is a drug dealer is no longer on—we all agree that that is not the way to treat citizens.

In response to all noble Lords who were nabbed by the police, I feel it is sad that one has to say, "Do you know who I am? I am Lord Taylor", or "Earl Russell" or "Earl Onslow". One should not have to say that. One should be able to say, "What business is it of yours if I am running at night in my trainers?" One must change attitudes and say, "I am a civilian. I am free to walk round the streets at night and do not have to say, `Do you know who I am?". If we have to say who we are it means we are living in an undemocratic society. We should not have to say we have rights enshrined in law. It is important therefore that the whole point of unjustified discrimination be made absolutely clear.

The Government make excuses, "We really wish it but they are radical changes and if we make them our policy might be challenged in a court of law". I hope that any policy can be challenged in a court of law. If it is not legal, it should be challenged in a court of law. The Government should have the confidence to design their policy to pass the judgment of a court of law. That is the least ore should expect. I hope that they do not have any other policies which are in defiance of the law but which we are not aware of because they have not been challenged.

The idea that policies are sacrosanct and should be protected from the judgment of courts of law is rubbish. That is all I can say. I am not convinced by the Home Office briefing on this matter. It appears to comprise many excuses. The Government do not need to have these excuses; they need to make a simple, bold commitment to outlaw unjustified indirect discrimination. Therefore I support the amendment.

Lord Avebury

It is remarkable how many Members of the Committee are able to recount personal experiences of detention by the police. I hope that I may be allowed to recount a personal experience when I did not tell the police who I was. Some years ago I happened to be passing the Aeroflot offices in Piccadilly when a demonstration was being held by refuseniks. Jews from the Soviet Union were demonstrating against the policy of the then Soviet government to deny them permission to leave the country.

I did not take part in the demonstration. I had left a meeting in the neighbourhood and was a casual passer-by. A person stopped me to hand me a leaflet explaining the objectives of the demonstrators. I was reading the document when a policeman came along and said, "Move". I replied, "Excuse me but I am speaking to this lady and I am reading the paper that she has given me''. The policeman said, "No you are not, you are causing an obstruction and I shall arrest you if you do not move instantly". I said, "Carry on if that is how you feel". He then gripped me by the arm, twisted it round my back, bundled me into a police car and took me to Vine Street Police Station. As the officer dug his nails into my wrist and caused me a considerable amount of pain, I asked him for his number and told him that I intended to make a complaint against him at the police station under the terms of the Police Act 1964.

I did not at any stage tell him who I was. I was in the process of writing down the number on a copy of the Evening Standard which lay beside me in the back of the van when the officer seized the biro from me so that I could not continue writing. When we entered the police station and I turned out my pockets the sergeant asked, "Is this all your property?" I replied, "No, because this officer has taken my biro". He said, "Yes, that is because I would not have you stab me with it like you were trying to". I quote those words which were given in the subsequent court case when I was charged with obstruction.

I tell this story to indicate how the police behave when they do not know who one is. I turned to a young black person in Vine Street Police Station and said, "You can see how they treat someone who is dressed in a suit with an umbrella and a briefcase. I can well imagine that people in your position get much worse treatment than I have experienced". I am afraid that there are bad elements in the police who need to be curbed and who will not be satisfactorily contained if the Bill proceeds without the provision of adequate measures to deal with indirect discrimination.

I wish to make a further point about this matter which was not dealt with by the Minister when I raised it at Second Reading; namely, the experience of gypsies. My noble friend Earl Russell said that if one section of the population is far more likely to be the victim of incompetent or crass policing than another, they need protection. Whatever has been said about black people applies equally to gypsies in this country. In the Second Reading debate I gave certain examples of action taken by the police of an excessive nature against the gypsy community; namely, large numbers of police officers who attended a wedding and another case whereby 200 officers descended on a site in north Oxfordshire imprisoning all the residents for the whole of a day while a search was carried out, thereby preventing the children from going to school and residents from visiting the doctor. As I understand it, no charges were subsequently brought against anyone on that site.

It is a matter of common experience that the police use excessive manpower and resources in attempting to combat supposed crime among the gypsy community because of the prejudices which exist against those people. I think that that is undeniable. If the Bill proceeds in its present form, there will be no remedy for people in this situation because in an individual case they cannot prove that the police have exercised discrimination. That can emerge only from a general survey of police behaviour in relation to gypsies. I believe that would clearly indicate that gypsies are receiving the wrong end of the stick. I hope that in considering what happens to black communities we shall give adequate thought to the position of gypsies who comprise the most deprived section of any ethnic minority in our community.

Lord Mackenzie of Framwellgate

I did not intend to speak in this debate but I have listened to attacks on the police.

Noble Lords

Oh!

Lord Mackenzie of Framwellgate

They are attacks. They make it sound as if we live in a police state. We have heard incidents recounted by Members on all sides of the Committee. They are quite right to recount those incidents if they have occurred. However, I am worried that police officers who read this debate may think that a sweeping generalisation has been made. We are talking about stereotyping, but it sounds as if there has been some stereotyping of the police. The Committee should appreciate that the vast majority of police officers carry out their functions in the proper manner. The incidents that have been recounted are exceptions rather than the rule. Having listened to the various incidents that have been recounted—

The Earl of Onslow

Will the noble Lord give way?

Lord Mackenzie of Framwellgate

I should like to finish—

The Earl of Onslow

I agree with the noble Lord.

Lord Mackenzie of Framwellgate

I am grateful for that. It is important to state that the Police and Criminal Evidence Act 1984 provides some guidance to police officers in relation to stop and search. This issue has been raised time and time again. The guidance states that the police have a right, and in fact a duty, to question anyone about a crime that has been committed and the citizen has a duty to help the police in the course of their inquiries. If we give police officers the impression that the Committee does not agree with that statutory provision, whether or not one wishes to do so one will deter police officers from carrying out their duty.

I have been stopped by the police on several occasions and I did not say who I was. Obviously if I had been mistreated or dealt with in an incorrect manner they would soon have found out who I was. That occurred when I was a serving police officer. Therefore Members of the Committee should not run away with the idea that they are being picked on and discriminated against. The police are doing their job. One must remember that the "Yorkshire Ripper", Peter Sutcliffe, was arrested as a direct result of being checked in the back of a car with probably his next victim. That was simply a routine check. It was not a search; a stop and search is a different matter. We are simply talking about stopping someone in the street and questioning him or her about an offence, or a suspected offence. If ever the police stop doing that, I am afraid that Members of this Chamber would suffer and the community would also suffer because there would be a massive increase in crime.

When Members of the Committee attack the police in the way they have done, they should try to remember that they are talking about a minority of police officers. The police are drawn from all sectors of society. Police recruits may include racists and people who act in a crass way. I believe that part of the problem is that police officers often deal with angry members of the public and are often in conflict with the community for various reasons. I suppose that that wears down police officers and perhaps they are not always as civil as they might be. I believe that much of the problem is due to insensitivity rather than to positive discrimination in the way that the Committee has described. I mention that simply because I feel that we have heard a totally unbalanced account of incidents. People outside who read the debate may well think that your Lordships feel that the police service is not doing its job. There is a danger in putting that message across. I rest my case.

5 p.m.

The Earl of Onslow

Before the noble Lord sits down, perhaps I may remind him that I specifically said that I quite accept this was an isolated case. I think the noble Lord will find that remark was read into Hansard. Like him, I have also been stopped by the police—perfectly legitimately—and treated with complete and utter respect.

Lord Mackenzie of Framwellgate

I am grateful for that intervention. I simply say that it might have helped if the noble Earl had mentioned that in his main address.

Baroness Lockwood

I, too, had not—

Earl Russell

Also before the noble Lord sits down—if the noble Baroness will forgive me—I am glad that the noble Lord, Lord Mackenzie of Framwellgate, said what he did. For the purposes of the record, I said that some Peers may be criminals; I did not intend that as an attack on the Peers. Some police may be; I do not intend that as an attack on the police. I think most of them do an excellent job. But all of us have to do some adjusting to the fact that we now live in a multi-racial society, the police just like all the rest of us.

Lord Mackenzie of Framwellgate

I am grateful for that. I shall finish by saying that I do not want to give noble Lords the impression that I am simply being defensive. I am not. I agree with everything that has been said. I am the first to criticise crass police actions in any respect. I spent my life, from a PC right up to chief superintendent, doing just that and trying to correct officers who had perhaps gone off the rails. I was worried that it sounded like a very one-sided argument. I was trying to correct that and to bring some balance to the debate. I am grateful for your Lordships' comments.

Baroness Lockwood

Like my noble friend Lord Mackenzie, I had not intended to speak. I start by saying that the debate is not about the police but about the inclusion of the concept of indirect discrimination in the Bill, in particular in relation to public services and public authorities.

I must say to my noble friend the Minister that I was very disappointed to read the Home Office brief on this matter. Although accepting the many good things that the Home Office intends to do to try to combat racism—as distinct from including the concept of indirect discrimination within the Bill—I do not think that that will be sufficient.

My experience is based on the Sex Discrimination Act 1975 and the establishment of the Equal Opportunities Commission, of which I was the founder chair. A section of that Act puts responsibility on local education authorities to provide equality in the provision of education services. That has not prevented cases of discrimination against local authorities. So the declaration itself is not enough.

We need the concept of indirect discrimination within the Bill, for two reasons. The first is that, in my experience, indirect discrimination is really the key to discrimination. When the Sex Discrimination Act 1975 was passed, we thought that we had a great deal of knowledge and experience of discrimination. It was not until we tried to interpret that Act that we began to find out what it was about.

In the course of the debate, the noble Lord, Lord Lester, gave an example of what he thought could be possible indirect discrimination, and the noble Lords, Lord Patel and Lord Taylor, have given their interpretations of situations where they feel that indirect discrimination has applied. In my experience, it is impossible to foretell the circumstances that will produce indirect discrimination. It is for that reason that we need the concept within the Bill.

The very first ca se under the Sex Discrimination Act talked about an age limit. I must confess that as chairman of the Equal Opportunities Commission—as I was at that time—I was not at all sure that an age bar was indirectly discriminatory against women. It was not until we became involved in the case and began to argue all the implications that the principle of indirect discrimination was fully appreciated.

Once this Bill becomes an Act and is on the statute book, we will begin to see new aspects of indirect discrimination. The Government cannot possibly foretell every circumstance and make provision in advance for them. So that is one reason why I feel that the Government should have second thoughts about the Bill and should accept the amendment.

The second reason is that we should have some cohesion in the law. As the noble Lord, Lord Lester, indicated, there will be conflicting circumstances under different Acts. When the Race Relations Act 1976 was passed, it was in many ways almost a replica of the Sex Discrimination Act 1975; in other words, there was an attempt to establish a common code that could be applied to discrimination.

Since 1976 we have moved on. We understand our obligations under European law and we have incorporated the convention on human rights into our domestic legislation. It is important that the various Acts of Parliament should all speak with the same voice so that there is no conflict between them. Therefore, from the point of view of cohesion of the law and a better understanding of one's situation under different laws, again it is important to incorporate this concept into the Bill. I appeal to my noble friend the Minister to make very strong representations to his colleagues to accept the amendment.

Viscount Colville of Culross

I am happy to follow the noble Baroness, Lady Lockwood, back to the more general principles with which the amendment is concerned. I wish to pick up on the point made by the noble Lord, Lord Lester, about the international dimension. In March of this year the United Kingdom Government will appear in front of the Human Rights Committee in New York to deliver their report on the situation of human rights, under the international covenant on civil and political rights, in the Channel Islands and the Isle of Man. This Bill, of course, has nothing to do with that. But the proposed presentation— which has already been presented on paper—goes through the legislation that has been passed since the last occasion when the United Kingdom's position was examined. Very soon the United Kingdom delegation will be dealing with the position of the United Kingdom as a whole. I am sure that on that occasion it will wish to bring up to date the situation in relation to human rights under the covenant so far as they are enjoyed by all the people who are under the jurisdiction of Her Majesty's Government. No doubt there will be a wish to discuss the Bill, which I think by then will be an Act.

The noble Lord, Lord Lester, is quite right to say that there is a right not to suffer discrimination. That is stated in Article 2 of the convention and is repeated in Article 26. From what I have heard of the arguments being put forward by the Home Office in defence of the Bill as it stands, I must tell the House that I do not believe that the Human Rights Committee will understand for one moment the distinctions and minutiae being put forward to justify the position currently taken by the Government.

Of course, I would never take part in the consideration of a presentation being made by the United Kingdom Government, but by this time I do know how my colleagues will think. I believe that one result of this legislation will be that on this occasion the United Kingdom Government find that they are severely criticised for breaches of the convention as a result of the way in which this legislation has been drafted. I cannot believe that that position is one in which the Government wish to find themselves. Furthermore, it is certainly not one I would rejoice to see. I hope that the time for turning back is still with us and that this may be the opportunity to do so.

Lord Peston

The intervention of the noble Viscount, Lord Colville of Culross, was cogent. We can all agree with his comments. I do not normally address noble Lords on topics of this kind. However, I do so today not because I have any legal expertise, but as a matter of moral obligation. The moral dimension has not been mentioned, but I feel a strong sense of what may be called the immorality of what permeates our society in this area. The main element that has prompted me to speak is my reading of the Macpherson report. I do not have the literary skills to express the horror I felt as I read what was being described in page after page of that report.

While I accept entirely that this issue does not concern only the Metropolitan Police—I shall return to exactly what it does concern—a central feature of the report was the behaviour of some Metropolitan policemen and no one has sought to deny the general proposition that more of that kind of behaviour occurred than that attributed to a tiny minority in the report. I do not accuse the police in general. But no one reading the report could assume that what occurred was an oddity. Rather, the report describes a characteristic mode of behaviour, one that appalled all those who read the report. Were I a parent of Stephen Lawrence I would still be screaming out for justice. Furthermore, I still suffer terribly, as do they and others, from the injustice of the thought that the killers are still at large and have not yet been brought to justice. For those reasons, I approach this matter with a certain degree of bias, but I believe that bias to be justifiable.

However, I do not wish to single out the Metropolitan Police. I believe that the phenomenon we are discussing permeates the whole of our society. I believe that institutional racism exists in all kinds of places. One is ashamed to have to admit that that is the case. As an academic, I have to say that I believe strongly that institutional racism exists in our universities. Equally, discrimination of a religious and sexual nature exists widely; is not limited to the police. Listening to the speech of the noble Lord, Lord Patel, who mentioned the NHS, I remembered that when I was a young man the Jewish boys at my school had to change their names in order even to secure an interview at a medical school. You simply could not even get to the starting point of applying to medical school with a Jewish name. Boys who were called Cohen changed their names to Conn while those named Levi became Lefford. That was religious rather than race discrimination. But that is merely to argue a technicality. For that reason, any idea that, first, discrimination is new, or, secondly, that it is limited, is wrong. Equally, today we are not discussing sex discrimination. But the scale of sex discrimination in our society still appals me.

The essence of this issue is indirect discrimination. That is why my noble friend and his colleagues at the Home Office have got it completely wrong. No one says, "We are not going to hire any blacks", or "Jews need not apply", although I might add that at one time that was exactly what was said. However, indirect discrimination is central to the matter and institutional racism informs the culture of many places. Years ago I carried out some work on the economics of immigration in a book that became quite important in its day. In my research I found many firms who did not employ black people. However, when asked, they did not respond that they had a policy of not employing black people. Rather, they said, "But these are our criteria and it just happens that no blacks have ever met them." That illustrates exactly the problem we face; namely, indirect discrimination.

The lack of promotion of women in universities does not mean that anyone says, "We are not going to promote women here". Instead, it is said that, "These are our criteria and it is rotten luck that rather few women meet them." So my point reflects precisely that made by my noble friend Lady Lockwood and many other speakers today; namely, that, with respect to the Minister, not unusually the Home Office has got it exactly wrong. It claims to be outlawing the practice of direct discrimination. That does not need to be specifically outlawed because the case is obvious. The precise problem is indirect discrimination and how to ensure that public authorities should not have any chance to wriggle out of responsibility for such behaviour.

I am led to the same conclusion as that of many speakers today. The Minister must think again and return with something better than what we are being asked to accept today. It is always with a heavy heart that I utter any word of criticism of my noble friends on the Front Bench. However, in this case I believe that we all have a moral obligation to say that this will not do.

5.15 p.m.

Lord Cope of Berkeley

It has become clear over the past hour and a half that this amendment epitomizes the important and widespread criticism of the Bill both within this Chamber and by those bodies outside who have studied the Bill. The case for the amendment was clearly made not only by the noble Lord, Lord Lester, but also by all those who have spoken in the course of the debate. The Government have argued that to extend the Bill to cover indirect discrimination might interfere both with policy making and policy execution. As regards policy making, as others have already pointed out, any policy that has a proper validity for helping those who are disadvantaged in some way—the unemployed; the young; ethnic minorities and so forth—would not fall foul of this legislation because, for example, there were more ethnic minority people in a particular geographic area, or whatever criteria were chosen on which to base the policy. I do not believe that to be a strong argument.

Those of us who have represented constituencies or who have been elected to local authorities know that, when fielding complaints from the public at Saturday morning surgeries, some people jump to conclusions as to why, from their point of view, a wrong decision has been taken or a wrong conclusion reached by an authority. For example, in planning matters it was an absolutely normal experience for people to say that the council had ignored what they said. Those people did not mean that, because the council may have studied their representations extremely thoroughly. What they meant was that the council did not agree with them. If the council happened to change its mind, there was always someone on the other side. All kinds of conspiracies are attached to a wrong decision on someone's part. However, that is not sufficient justification for saying that the Bill should not cover policy-making. As the noble Baroness, Lady Whitaker, said, the greater difficulty lies in the implementation of the policy.

There has been particular reflection on the police. The whole Bill stems in part from the Lawrence case and the Macpherson inquiry. I welcomed the contribution by the noble Lord, Lord Mackenzie. The debate might otherwise have tended to give the wrong impression of the Committee's view of police behaviour. I do not know whether we shall hear any reminiscences from the Minister regarding any brushes that he may have had with the police force at an earlier stage in his life. I do not propose to go down that road myself.

The Metropolitan Police, and particularly its leadership, are doing a great deal to tackle the issue of stop-and-search. No one wants to make it more difficult for them. For those who want to look into the matter in more detail I recommend the report published yesterday by Her Majesty's Inspectorate of Constabulary on, among other matters, race and stop-and-search in the Metropolitan Police. The report points out the difficulties with the figures—flowing in part from the fact that the population of the streets of London is not the same as the residents of London. There are a large number of visitors. That distorts the figures and makes them difficult to read. The report makes clear the efforts of the Metropolitan Police and the ways in which they are attempting to tackle the problem and, indeed, succeeding to a considerable degree, with the assistance of the Commission for Racial Equality, which has been involved in a Metropolitan Police working party on the subject for five years or more, and other bodies. No one wants the police to become less effective against crime.

One of the worrying points emerging from the report is that some police are now not using the power to stop and search at all for fear of disciplinary action and the possible consequences. That is partly to do with changes in the disciplinary code, which have made it slightly easier for those involved to lose their jobs. That point must be borne in mind.

To return to the main point of the amendment, indirect discrimination is covered by the European Convention on Human Rights, the common law, and the United Nations conventions referred to by the noble Viscount. So in a way the only questions being decided by the amendment are: which judicial forum will be the relevant one to decide these matters; and on what basis? Is it to be decided within the United Kingdom by Ministers answerable to Parliament in the traditional way; or is it to be decided by United Kingdom judges applying the legal process?

Whichever of those two routes is chosen in the United Kingdom in regard to indirect discrimination, the ECHR and the United Nations conventions will still apply. So judicial processes overseas will follow in any case. That is the nub of the choice that the Government and the noble Lord, Lord Lester, are asking us to make. This has been a most interesting debate. My conclusion is that if the Government want to persevere with the clause in its present form, they must make a much better case than they have so far.

Lord Bassam of Brighton

The debate has indeed been interesting and stimulating. I have followed the comments with great interest. I was rather tempted to bring up my own stop-and-search anecdote but am reluctant to enter into that field, except to say that it is such a long time since I was stopped that, if the police ever did stop me and I were to venture that I was the Lord Bassam, I should probably be arrested on the spot for impersonation rather than any other reason.

The issues touched on by many noble Lords are extremely important. I enjoyed all the contributions in different ways. Some were entertaining, others illuminating. They were undoubtedly thought-provoking, particularly in the context of remarks of the noble Lord, Lord Lester, and the concluding comments of the noble Lord, Lord Cope.

The amendment presents some difficulties for the Government. We are willing in spirit. We are fully committed to our historic role of introducing fairness and justice in the whole field of race relations. That is a long, important and noble part of the Labour tradition. It was a Labour government that broke the ground in this area more than a quarter of a century ago, guided and aided by the noble Lord, Lord Lester, and the proposals were ably advanced by the noble Lord, Lord Jenkins of Hillhead.

The amendment as drafted would have the effect of making indirect discrimination by a public authority unlawful under new Section 19B of the Bill. Perversely, it would not catch most law enforcement functions, but would catch government regulatory social and economic policies, leaving them open to challenge and uncertain consequences. The Government believe that in those functions a more positive approach would be to require public authorities to promote equality. I believe that there is consensus on that issue.

The Government fully support the principle of indirect discrimination where appropriate. Indirect discrimination occurs when 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 national origin and if it is detrimental to the claimant who cannot comply.

Indirect discrimination applies in the fields already covered by the Race Relations Act: employment, education, and the provision of goods, facilities and services. Some contributors to the debate have rather ignored the fact that the provisions already exist, in part, in law relating to those practical areas of policy. The Act already applies to the public sector and private sector alike in those areas, including the police. We should not forget that important point.

The protection is essentially in respect of things that ethnic minorities may want but might be denied by an unjustifiable requirement or condition. For example, an unnecessary height requirement on individuals seeking a job could easily exclude certain groups of ethnic minorities from employment. A requirement such as an address in a particular locality could easily exclude ethnic minorities from access to services and so on. Such requirements or conditions would be unlawful unless they could be justified.

The acts of public authorities to which the new provisions will apply fall within a much broader range of functions, such as law enforcement, regulation and social and economic policies. Those are not of the same nature as those between an employer and an employee or a provider of services and a recipient of services. Case law has shown that to be the position. Moreover, indirect discrimination as an approach does not fit well with those functions.

Many Members of the Committee will by now be familiar with the reasons the Government believe that to be the case. The arguments were well aired on Second Reading and, as many have acknowledged, I have since written to all Members of the House setting out the Government's position for clarity and for the purpose of improving the quality of debate. My right honourable friend the Secretary of State for Home Affairs and I have met many of your Lordships to discuss the issue at first hand. We have indicated that our minds are not closed, and I wish to reiterate that important point today.

This Bill has its origins in the Stephen Lawrence inquiry report. It implements recommendation 11 of that report. The inquiry found much evidence of racism within the police and there are many examples throughout the report of what the inquiry had in mind by this and what it wanted to see addressed. Interestingly, the inquiry found little evidence of overt racism.

Conversely, the inquiry found a great deal of evidence of unwitting racism. Many noble Lords have given voice to this and quoted examples of police officers in their dealings with others—for example, showing lack of respect and sensitivity to an individual due to their race or colour; using unwitting racist language; displaying lack of understanding; showing ignorance or mistaken belief about others; using well intentioned but patronising words or actions; displaying unfamiliarity with behaviour or cultural traditions of people or families from ethnic minorities; under reporting of racist incidents; and, as many Members of the Committee mentioned, racial stereotyping black people as criminals or trouble makers, for which, I should emphasise, the inquiry partly blames the countrywide disparity in stop and search figures.

All the examples of unwitting racism highlighted in the report are, we believe—and this is the important point to recall—direct discrimination, not indirect discrimination. Direct discrimination occurs under the Race Relations Act when, on racial grounds, a person treats another person less favourably than he or she treats or would treat other people. So a police officer who treats a member of the public unfavourably, whether wittingly or unwittingly, because of the colour of his or her skin is directly discriminating against that individual. A police officer who treats a member of the public unfavourably, whether wittingly or unwittingly, because he or she holds negative racial stereotypical views is directly discriminating against that individual. A police officer who treats a member of the public unfavourably, whether wittingly or unwittingly, in a patronising or disrespectful manner because he or she is from an ethnic minority group, is, we argue, directly discriminating against that individual.

I will not persist with this listing as I am sure that I have by now underscored my point that the unwitting racism identified by the inquiry was unwitting direct discrimination. That is an important point to take into account in the debate.

I should say a little, however, about what the Government are doing to tackle the problem of unwitting racism in the police service. The inquiry made many helpful recommendations for doing that and the Government have set out how they are taking them forward in their action plan, published last March. My letter of 5th January to all Peers gave the main examples.

In short, the police service's performance in tackling racism will be rigorously assessed by means of the new ministerial priority to increase trust and confidence in policing among minority ethnic communities. In 2000–2001, the number of ministerial priorities set for the police will be reduced from four to two, one of which will be the police service's performance in tackling racism. These priorities will be underpinned by performance indicators, the development of which is under way.

New discipline procedures will now apply. In particular the civil standard of proof has been introduced for discipline cases and there are now formal procedures in legislation for dealing with unsatisfactory performance. Targets have been set and agreed for the recruitment, retention and progression of ethnic minority officers and the dismantling barriers action plan was prepared to help the service achieve those targets. The action plan includes a commitment to review the whole of the recruitment process and to remove any discriminatory practices.

I pause here to draw attention to the important report produced by Her Majesty's Inspectorate of Constabulary yesterday, Winning Consent. That report, in large measure already accepted by the Metropolitan Police, is another part of our commitment at the time of the publication of the Macpherson report. It takes forward and tackles many of the issues in its recommendations. We see it as an important part of the package for tackling the issue within the police service.

The Government have already made funding available under a "crime fighting fund" to recruit 5,000 frontline officers over and above the number forces would otherwise have recruited over the next three years. One of the five criteria for that fund is that forces should have agreed ethnic minority recruitment targets in place and to have work in hand to meet the targets set out in the dismantling barriers action plan.

There is also a programme of community and race relations training under way in forces up and down the country using a specialist external contractor under a Home Office contract. This typically involves obtaining the perceptions of the local community on how the police are providing their services and facilitated sessions with members of minority ethnic communities. ACPO are also in the final stages of producing guidance to forces on dealing with hate crimes.

A programme of research is being conducted on stop and search, including on recommendation 61 of the inquiry report that all stops and searches should be recorded and a copy of the record given to the person stopped, to ensure that officers use the power fairly and effectively. That approach is beginning to affect performance.

Members of the Committee will know that we believe that much of that is about culture and ethos. The problem of unwitting racism in the police is, therefore, being tackled on a number of fronts embracing those issues on the lines recommended by the inquiry report. Where the case can be helped by prohibiting indirect discrimination, we believe it is already provided for in the Act. As I explained earlier, indirect discrimination by the police is already covered in respect of their employment and where they provide a direct service, within the meaning of the Act, to the public. These are essentially things that individuals might want but may be denied by an unjustifiable requirement or condition. In terms of law enforcement, which case law has shown to be different from a "service", indirect discrimination does not fit.

As in the case of stop and search, there is no particular requirement or condition imposed upon an individual being stopped and at least no requirement that cannot be complied with. In this instance, the law places the onus on the police officer to have reasonable suspicion or in order to stop and search an individual. A prohibition of indirect discrimination would not, therefore, catch such law enforcement activities, only direct discrimination would. Any disproportionality in the use of stop and search that is attributable to discrimination is due to the cumulative effects of direct discrimination.

A prohibition of indirect discrimination would, however, catch the Government's regulatory and social and economic policy-making functions. Many of the Committee have focused their thinking and attention on that point.

5.30 p.m.

Lord Lester of Herne Hill

I am grateful to the Minister for giving way. I wish to ask a question because I do not understand the Government's position and would be grateful if he could answer it. Let us suppose that the police in one area were to refuse bail on the grounds that people had to be of fixed address or in continuous employment. The police were objecting to bail on that basis. Suppose that that hit disproportionately, let us say, at gypsies who do not have a fixed abode or steady employment, so that there was a requirement or condition as regards obtaining police bail that one should be able to satisfy and that could not be satisfied by gypsies. Would that not be an example of a kind of indirect discrimination? It would not be direct discrimination, because it would be applied equally to everyone in the formal sense. You have to be of fixed abode or in continuous employment to get bail. But it would hit disproportionately at gypsies and would require to be justified.

What on earth is the distinction that the Government make between the police in an operational capacity and the police giving advice to the public? In the latter sense they are covered by indirect discrimination but not in the operational sense. I do not understand the distinction.

Lord Bassam of Brighton

The noble Lord raises a valid consideration—there is no question about it. However, each case must be looked at on its merits. That, too, is an important point and it is hard to generalise from those instances to the particular. It may well be tantamount to a form of direct discrimination, but it will be determined around the circumstances of the case. It is an important point for the future.

Some members of the Committee may ask: what is the problem with what the Government seek to do here? The problem, which I believe was touched on by my noble friend Lady Lockwood, is the unforeseen consequence that the incorporation of indirect discrimination may have for government in the pursuance of certain policies. We cannot predict every circumstance. It would be for the courts to decide whether any government policy with a requirement or condition that had a differential impact on different racial groups was justified. For example, age-based policies such as the New Deal for Young People, winter fuel payments to pensioners or regional or zone-based policies, such as employment and education action zones, could be open to potential challenge through the application of indirect discrimination. Inevitably, different proportions of people would fall within such policies according to racial or ethnic groups—even between ethnic minority groups themselves. Challenges could therefore be made on all sides.

Earl Russell

The Minister suggested the possibility of a challenge under these provisions to winter fuel payments to pensioners. Would the noble Lord care to make an estimate of the statistical probability of such a challenge?

Lord Bassam of Brighton

I am not a statistician and do not possess the infinite wisdom of the noble Earl. I am open to persuasion on that point, and no doubt the noble Earl can provide a fantastic statistical argument.

It is here that we face a particular difficulty. We may face challenges from all sides. While the Government should be able robustly to defend their policies, they would be leaving those matters to be decided by the courts. That point was made by the noble Lord, Lord Cope. Any government would question whether that was right and proper. Moreover, we would have to devote significant resources to the defence of our policies in a way with which the Bill was never intended to deal. Not least, challenges could be brought against policies that helped, aided and assisted ethnic minority communities the most. I do not believe that that is the intention of the noble Lord, Lord Lester, and those who support him.

Nevertheless, the Government accept that public authorities must ensure that their policies, programmes and practices take fully into account the needs of ethnic minorities. As to the functions to be covered by Clause 19B, our preference is to achieve this in a positive way by obliging public authorities to promote equality. Our mind however is not closed to the matter of indirect discrimination. The Secretary of State for Home Affairs indicated as much when he and I met Peers as recently as yesterday in the Moses Room. We shall keep this matter very carefully under review.

On the basis of the arguments this afternoon, I hope that the noble Lord, Lord Lester—

Lord Peston

Before my noble friend sits down, does he intend to deal with the international point which to me, as a layman, completely destroyed the position of the Government? I thought that my noble friend would provide some counter to that terribly important intervention, or would at least write to members of the Committee to explain it.

5.45 p.m.

Lord Bassam of Brighton

It was a very important intervention but it is not one that I wish to cover this afternoon. It is a matter to which I am happy to return, and no doubt we shall correspond on the issue.

I intended to deal with one or two particular points raised by members of the Committee during the debate. The noble Lord, Lord Avebury, asked about the treatment of gypsies by the police. If a person who falls within that category (if one uses that term) is treated by the police less favourably than another in the same circumstances on the grounds of his racial group, in the Government's view that is direct discrimination which is covered by the current legislation. That would be so if one was talking about the provision of services and in these new circumstances it would be covered by the legislation.

The noble Lord, Lord Lester, referred to religious discrimination in the context of Muslims. The Government are very aware of the concerns that have been expressed on this issue. A recent debate took place in this Chamber on the whole issue of religious discrimination. It is not our intention to cover that issue in this piece of legislation. That matter raises many difficult, sensitive and complex questions. As we made clear at the time of that debate, there is no quick fix solution. However, as most members of the Committee will be aware, we have commissioned research into this issue from the University of Derby which we intend to publish later in the year.

Lord Lester of Herne Hill

As I recall, the debate to which the Minister refers was initiated by the noble Lord, Lord Ahmed. Is it not the case that the Government's defence to the charge that they should have introduced legislation to combat religious discrimination was that it was covered by the concept of indirect racial discrimination under the Race Relations Act? Therefore, since the Government have not introduced legislation to deal with religious discrimination, is it not correct that the only way in which British Muslims can be protected is by the Government making themselves liable for indirect racial discrimination against members of that community?

Lord Bassam of Brighton

The noble Lord is in part right. But these matters are very complex and it is important to look separately at the issue of religious discrimination. I understood that that was the point to which the noble Lord alluded in his earlier comments.

The debate has been wide ranging, and I have found it very stimulating. A number of important and telling points have been made during the course of the debate this afternoon in Committee. There is much for the Government to reflect upon. Our minds are not closed in this matter; it is something on which we wish to reflect. On that basis, I invite the noble Lord, Lord Lester—my noble friend Lady Howells also made a very telling speech in this debate—to withdraw his amendment.

Lord Lester of Herne Hill

We are grateful to the many members of the Committee who have taken part in a remarkable debate full of confessions, revelations as well as moral and legal principles. I have a confession to make. I have not been stopped by the police. No doubt that is a pleasure ahead of me. I recall that when I worked with the Campaign Against Racial Discrimination in the 1960s I was most indignant when Afro-Caribbean members said that they were not really concerned about employment or housing discrimination but their dealings with the police. In those days as a young barrister I thought it quite outrageous, as did the noble Lord, Lord Mackenzie, that such a view should be so prevalent. I was wrong in those days.

The amendment is not concerned mainly with the police. Many of the examples given by noble Lords have related to direct, not indirect, discrimination as far as concern the police because they have been about prejudice and stereo-typing. In that sense the Government are quite right. However, as the noble Baroness, Lady Lockwood, pointed out, it is very hard to tell the difference between direct and indirect discrimination, as any practitioner in the field knows. That is why complainants normally begin by making complaints of both direct and indirect discrimination. It is only when the facts are uncovered that one is able to tell which is which.

I defy the Minister to explain to the Committee the difference between unwitting direct discrimination and unintentional indirect discrimination. I believe that I could pass the exam, but I bet that he and 99 per cent of the Members of this House could not. I can do so only because I have been arguing with Law Lords on the subject in several cases. It is about purpose, causation, impact and effect and all of those matters are mixed up together.

I am sorry that the noble and learned Lord, Lord Ackner, is not still in his place as he was earlier in the debate. Some years ago I heard him ask the luckless Attorney-General of Mrs Thatcher's government whether in his view the maxim "think before you speak" was incompatible with good government. I adapt the question then put by the noble and learned Lord, Lord Ackner. I ask the Minister and his colleagues: is the maxim "think before you act" incompatible with good government? The concept of indirect discrimination seeks to say to the Government that they should not just think about policy formulation but think before they implement that policy, about its effect on vulnerable groups and make sure that they have some justification.

The Minister's main point is that it is inconvenient for the administration to have to answer for the effect of their policies in courts of law. No doubt that is true. No doubt power is delightful; no doubt absolute power would be absolutely delightful; no doubt, also, if there were no judicial review of public administration that would be most convenient for Ministers and civil servants. But, happily, we live under the rule of law and that includes the rule of international law.

One of the most significant contributions was that of the noble Viscount, Lord Colville. He, after all, is a member of the Human Rights Committee which polices the International Covenant on Civil and Political Rights. I wrote to the noble Lord the Minister on 22nd December and said: I look forward to receiving your letter answering the various points that I raised in the course of the Second Reading debate, including the Government's reasons for considering that the exclusion of the concept of indirect discrimination is compatible with the UK's obligations under international and EC law". Part of international law is the law of the covenant, of the Convention for the Elimination of Race Discrimination and of the European Human Rights Convention and, of course, part of European Community law. We have received no answer to that. I have dealt with it in the note I have placed in the Library. I do hope that we receive an answer because the Government have been given a solemn warning by a distinguished member of the Human Rights Committee. There are only 18 members. The Human Rights Committee is a most prestigious and important committee of eminent jurists. The British member has told the House today—we are the ones who have the international obligation to comply with the covenant, as do the Government—that in his view the argument put forward by the Minister for the Crown being above the law relating to indirect race discrimination is not compatible with Article 2 and Article 26 of the International Covenant on Civil and Political Rights. How then can Ministers of the Crown come forward to this House with legislation unless they are satisfied to a proper standard that what they are doing, and advising the House to do, is compatible with our international human rights obligations?

The paradox of the entire debate is that really we thought we had covered all this in 1976 in Section 20 of the Race Relations Act. This Government are apparently going backwards to before the decisions that were taken by the noble Lord, Lord Jenkins of Hillhead, and his colleagues in the Wilson government. We are planning to go back behind that on the basis of what I think is a misconceived majority decision.

If I were to seek to test the opinion of the Committee now, I am confident on the basis of the speeches that have been made, if they were reflected in the Division Lobby, that there would be an overwhelming majority against the Government. But I am comforted by the Minister saying that the Government have an open mind. It is much better if we can resolve these questions amicably without the need to use that kind of voting force. I have heard nothing to suggest that the public administration would do other than benefit from the sunshine that comes when it has to justify its policies to an independent third party, the judiciary.

I hope very much that everyone will reflect on the debate and on all the points that have been raised. Meanwhile, I beg leave to withdraw the amendment.

The Earl of Onslow

Before the noble Lord withdraws the amendment, can he give an undertaking that he will come back to this issue at the Report stage if the Government do not come up with something satisfactory?

Lord Lester of Herne Hill

I certainly intend to do that, as I think is obvious from the tone of my withdrawal. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 3 to 7 not moved.]

5.55 p.m.

Lord Lester of Herne Hill moved Amendment No. 8: Page 2, line 19, after ("Act") insert ("or is unlawful)) discriminatory under common law").

The noble Lord said: I can be brief on this amendment. It is designed, for the avoidance of doubt, to make sure that nothing in the Act is intended to cut down the common law, the common law already having a clear principle that public authorities must not exercise their powers or perform their duties in a manner which is discriminatory.

I have put down this amendment to seek reassurance from the Government on what is now known as a Pepper v. Hart statement. I would rather see this on the face of the Bill, and therefore of the Act, for the avoidance of any doubt. I have therefore put down the amendment to make quite clear that the Act does not intend in any way to cut down the common law of England with regard to equal treatment without discrimination. I beg to move.

Lord Cope of Berkeley

As there is now to be statute law on this subject, one instinctively starts from the assumption that the common law will be superseded. As I understand it, that is not likely to happen because, after all, even if the statute law takes over from the common law in some respects, it will not do so entirely and it does not eliminate the common law. If any parts do remain covered by the common law but not by this new statute they will still be able to form the basis of a court case. Obviously, the direct/indirect discrimination point is the big one as far as that is concerned. But there may be other elements where the same applies.

Given that it is justiciable in any case, it might be thought that it did not matter much whether it was justiciable under the common law or under this new statute. The important additional element of being covered by the statute is that the Commission for Racial Equality has a role which comes into play in the case of the possibility of unlawful discrimination under the statute. Therefore, it is not left to the rather more haphazard business of which cases come forward.

I think it is clear that as the Bill is drafted, including the indirect and direct discrimination difference, some common law rights will remain and will not be overridden by this statute. It may be that it is the Government's intention that most of the common law in this respect should be overridden, but it is clear that it is not to be at the moment.

Apart from the direct and indirect discrimination, I should like to know from the Minister whether there are any other common law rights which the Government think will remain of importance because in some particular they go further than the Bill does. But it is all subject—this point came out during the previous debate and at Second Reading—to the fact that we have international obligations which override all of these provisions. The common law will remain. It is only a question of the mechanism which remains and, particularly, whether the commission will be involved in all the parts of the discrimination which may come to court.

Lord Bassam of Brighton

The Government believe that nothing in Section 19B will interfere with discrimination in common law. To state on the face of the Bill, as the amendment would, that new Section 19B does not make lawful any unlawful discrimination under common law could have the reverse effect of what is intended by the noble Lord, Lord Lester of Herne Hill. It could suggest that an act, if it is discriminatory under common law, is not unlawful under Section 19B and therefore no proceedings could be brought under Section 19B; a perverse effect, indeed.

Section 53 of the Act preserves the right to bring judicial review proceedings for unlawful discrimination. In view of that and my earlier point, the Government do not agree with Amendment No. 8 and ask whether the noble Lord, Lord Lester, will in those terms withdraw it, principally because we believe that it does not have the effect that he intends it to have.

The noble Lord, Lord Cope, asked a question which I am not in a position to answer. I shall read Hansard carefully on his point, and if it is not covered I shall write to him on that.

Lord Lester of Herne Hill

Before the noble Lord sits down, is it common ground that nothing in the Bill is intended to cut down the common law principle of equal treatment without discrimination? If that is what he said—I think it is what he said—I am happy to withdraw the amendment.

6 p.m.

Lord Bassam of Brighton

That is our understanding and that is how we intend things to be.

Lord Lester of Herne Hill

I am very grateful. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lester of Herne Hill moved Amendment No. 9: Page 2, line 21, at end insert— ("(9) Nothing in this section shall make unlawful any measures appropriate and necessary to meet the special needs of persons of a particular racial group or any measures designed to prevent or compensate for disadvantages suffered by persons of that racial group.").

The noble Lord said: This amendment would permit public authorities to take proportionate measures—I emphasise "proportionate measures"—to ensure that the special needs of racial groups are met. It supplements the ability of public authorities to justify policies and schemes that are intended to benefit particular communities. Alongside Section 35 of the 1976 Act, which already has provision to meet the special needs of ethnic minorities, it makes the taking of additional or different action lawful where that is appropriate to meet the needs of a particular racial group. Its object is to achieve a non-colour blind approach by public authorities, as was strongly urged by the Stephen Lawrence inquiry. Where special measures are targeted on grounds such as language, employment history, employment prospects or length of residence, that could constitute indirect discrimination, assuming that we succeed in amending the Bill to cover indirect discrimination. The amendment ensures that such measures will not be unlawful. It also reflects the European Commission's proposal for a greater equality directive. There are similar provisions in the New Zealand anti-discrimination legislation, in the Irish anti-discrimination legislation and in the South African constitutional guarantee of equality. We hope that the Government will be sympathetic to the amendment because one of the arguments they have used against including the concept of indirect discrimination is that it might fetter their ability to take positive action in favour of ethnic minorities. The purpose of the amendment is to make sure that properly controlled and proportionate positive action can be taken. I beg to move.

Lord Cope of Berkeley

I am not clear why the amendment is required. The underlying legislation—the 1976 Act—allows for discrimination to remain lawful if there is a good reason for it—if one is trying to achieve something for which there is a perfectly valid reason other than being discriminatory purely on a racial basis.

We all accept the need for policies designed to benefit particular sections of the community which are suffering hardship or disadvantage. There are many examples of such policies under successive governments. I did not think that it would be necessary to have in the Bill a specific provision of this character. There is no such provision in the 1976 legislation and I do not think that that has caused any problems as far as concerns institutions covered by that legislation. I am cautious about the need for the amendment although I am sympathetic to the idea that positive discrimination or compensation for disadvantage for persons of a racial group, or for that matter other groups, is essential.

In referring to racial groups, perhaps I may mention one other point. I discovered that the Home Secretary thinks that I am prone to violence on account of being English. That seems to be a directly discriminatory remark which I do not think is historically accurate. But we all have our crosses to bear, and disapproval of the Home Secretary seems to be one of them.

Lord Bassam of Brighton

This amendment would allow positive action to be taken in relation to the functions of public authorities to which Section 19B applies. It broadly follows the approach taken in Section 35 of the Act, which allows positive action as regards the access of racial groups to facilities or services to meet their special needs in the context of education, training, welfare or ancillary benefits. The aim of positive action is to create a level playing field, something which. I think we al] support. The Government see merit in the amendment and would like to take it away and consider it further in discussion with the noble Lord, Lord Lester, and the noble Baroness, Lady Howells, if necessary and if that is convenient to them. In the light of that, it would be helpful if the noble Lord, Lord Lester, were prepared to withdraw the amendment for the time being.

Lord Avebury

Before the noble Lord sits down, let us suppose that he agrees to this amendment, or something very similar to it, giving effect to the principle set out in it, would the words used in his letter of 22nd December to my noble friend no longer apply? He commented that, challenges could be mounted to those policies, programmes … that are helping ethnic minority communities the most". To come back to indirect discrimination, the noble Lord was arguing that these challenges could be mounted if my noble friend's amendment were passed. If he is now saying that he will accept something like the amendment now before the Committee, would that not remove the objection that he made to my noble friend's earlier amendment?

Lord Bassam of Brighton

It is a point to be thought through when we consider, as we said we would, the amendment. I am not sure that I can entirely agree with the point made by the noble Lord, Lord Avebury. These are complex issues. There is a complex interrelation between all of these various points—whether it is about positive action, indirect or direct discrimination, and the way in which we make use of those in law to change the atmosphere of race relations in this country. We are entirely happy and comfortable with taking the amendment away. We want to give it careful consideration. We are open to further discussion on it, publicly and privately. We invite the noble Lord to withdraw the amendment on that basis.

Lord Lester of Herne Hill

We are delighted and grateful. On that positive note, I speedily beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Elton)

Before calling Amendment No. 10, I must advise the Committee that if it is agreed to, I shall be unable to call Amendment No. 11.

Lord Lester of Herne Hill moved Amendment No. 10: Page 2, leave out lines 22 to 25 and insert— ("(1) Nothing in section 19B shall render unlawful any act done by a relevant person in carrying out immigration and nationality functions in affording persons of a particular nationality, religion or ethnic or national origin special treatment on humanitarian grounds.").

The noble Lord said: New Section 19C creates a blanket exemption for any directly discriminatory act in relation to any of the wide range of immigration or nationality functions carried out against another person on grounds of nationality, or ethnic or national origin, by a Minister or by officials acting in accordance with the relevant authorisation. That section, which was much debated during the Second Reading of the Bill, delegates considerable power to the Government, by-passing the need for parliamentary approval of racially discriminatory practices and procedures. For the reasons that were debated fairly fully at Second Reading, it has caused great concern, especially among ethnic minorities in this country.

The amendment narrows the ability of the immigration and nationality service to discriminate by limiting it to an act done, by a relevant person in carrying out immigration and nationality functions in affording persons of a particular nationality, religion or ethnic or national origin"— those words come from the international treaties to which we are signatories— special treatment on humanitarian grounds".

If the Home Office wishes to make special arrangements aimed at providing protection for particular groups seeking shelter in the United Kingdom, such as the Bosnians and Kosovar Albanians who were granted exceptional leave to remain during the recent crisis in the Balkans, it is difficult to understand how that would require any exceptions. We understand from previous contributions by the Minister that that is the main problem with which the Home Office seeks to deal. The reason for affording favourable treatment to some of those groups is surely not based on their ethical or national origins but on their well-founded fear of persecution, the urgency of their humanitarian needs and the need to comply with the United Kingdom's obligations under the refugee convention. The policy is not based on, and is not caused by, their ethnicity. It is not because of Muslim, Kosovar, ethnic or religious origins but for the reasons I have just given.

In the United Kingdom's 14th report to the committee dealing with the convention on the elimination of racial discrimination, the Government said that there is nothing racist about designating countries which produce large numbers of unfounded asylum applications. I respectfully agree. There is nothing racist about it. It is not based on colour, race or ethnic or national origins. The same is true of refugee situations if humanitarian provision is made not on the basis of ethnic or national origin but on an objective assessment of the conditions in the country concerned.

Again, we are in the area of international human rights law where we are unaided at present by any statement from the Government on their views about our international treaty obligation. However, in my respectful submission—it is derived in part from Professor Goodwin-Gill who is the leading international refugee legal expert in this country and author of a major book on the subject—new Section 19C as it stands is not consistent with the United Kingdom's international obligations. It is not consistent with Articles 2, 5 or 6 of the convention on the elimination of all forms of racial discrimination. As the noble Viscount, Lord Colville, indicated in a different context, it is not consistent with 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 the grounds of a refugee's ethnic or national origins.

The UNHCR's executive committee, of which the United Kingdom is an original member, has, as Professor Goodwin-Gill points out, emphasised that decisions on asylum must be made without discrimination as to race, religion, political opinion, nationality or country of origin.

We all agree with the Home Office that in exercising immigration control one has to draw distinctions which are based, for example, on the nationality of particular people seeking to enter this country. That is not the issue here. We are concerned with the taking of a power which is not in the 1976 Act, even though the 1976 Act already has the powers provided in Section 41. We are concerned with the power to allow the Home Office to discriminate not only in any immigration decisions but also in nationality decisions on the basis of a person's ethnicity. Nothing could do more harm to the reputation of the immigration and nationality service in this country than to give the impression to the ethnic minorities in this country that we are discriminating at the gate, or conferring British nationality and citizenship because of people's ethnicity. I am sure that that is not what we do. Were we to do so, we should be condemned by all the international bodies for breaching international human rights law.

Section 41(2) of the Race Relations Act 1976 states: Nothing in Parts II to IV shall render unlawful any act whereby a person discriminates against another on the basis of that other's nationality or place of … residence or the length of time for which he has been present or resident in or outside the United Kingdom … if that act is done (a) in pursuance of any arrangements made (whether before or after the passing of this Act) by or with the approval of, or for the time being approved by, a Minister of the Crown; or (b) in order to comply with any condition imposed … by a Minister of the Crown". Those words were carefully inserted because the immigration and nationality department wished to have them there to give it the freedom that it needed in exercising its public functions. That is why they are in Section 41. I do not understand that there has been any change of circumstances since 1976 to require any wider authorisation to be given than that in Section 41. It is carefully controlled in Section 41 so that it cannot be abused.

My amendment is designed to give extra cover without going so far as to authorise discrimination based on ethnicity in immigration or nationality decisions. We very much hope that the Government will be as open minded about this amendment as they were on the previous one. I beg to move.

6.15 p.m.

Lord Cope of Berkeley

Amendment No. 11 standing in my name is not grouped with Amendment No. 10. However, it goes to a closely related point which, to a certain extent, the noble Lord has already argued. Unless any Member of the Committee objects, I think that it would be convenient for me to discuss it with Amendment No. 10.

I believe that this is one of the areas—we referred to them at the beginning of our debate today—where we need a clear statement of the Government's view of the international obligations and how they impinge on the immigration and nationality aspect of the Bill. I hope that the Minister will be able to assist us with that.

In immigration and nationality functions we discriminate between people on the grounds of their nationality. I believed that this clause was necessary in order to preserve the ability to do so without the danger of it being challenged. To expand the point slightly, we allow European Union citizens access to this country on a freer basis than those from further afield. One has only to go to Heathrow or any other port to see the different arrangements for EU citizens compared with those from other countries. That is discrimination on the basis of nationality and sometimes national origin.

However, as far as I am aware, we do not distinguish on ethnic origin grounds. It would be offensive if we said to someone from a particular country, "It is not your nationality that makes the difference between whether we do or do not admit you, while we treat differently this other person who is similar to you. It is because of your ethnic origin: because you come from this specific part of the population of your country".

That is why I tabled Amendment No. 11, but there is a misprint in the Marshalled List. It charmingly translated "ethnic" as "ethic". I do not believe that anyone will be misled because the amendment seeks to leave out a word in the Bill. The right reverend Prelate will be relieved to know that I do not intend to go into the questions of ethics or religious grounds. Sometimes religion and ethnic minority are taken as a proxy for one another, not least in Northern Ireland. However, the dispute there is not religious, although it is sometimes expressed in those terms. As regards immigration and nationality functions, religion does not and should not come into the matter, nor should ethnic origin.

Unlike the noble Lord, Lord Lester, I am not an expert, so I may be told that examples of discrimination on the grounds of ethnic origin already exist in our treatment of immigration and nationality issues. If so, I shall not press the amendment. However, that is not a sound basis on which to discriminate and in this clause we should not preserve it as a lawful function.

Lord Bassam of Brighton

The effect of the amendment would be to remove the existing proposed exemption. The effect of the amendment tabled by the noble Lord, Lord Cope, would be to narrow the scope of the exemption to Clause 1. I shall deal with both amendments and comment on our international obligations.

We believe that it would remove the existing proposed exemption for immigration and nationality functions and replace them with a much narrower provision covering special treatment on humanitarian grounds. When we met in December to discuss these issues, the noble Lord made clear to me his view that the existing legal safeguards in the Race Relations Act 1976 should be sufficient to allow the immigration system to continue to operate effectively. He repeated that argument today. I understand that this amendment has been tabled for the avoidance of doubt in respect of the Bill's application to humanitarian exercises.

As I have made clear, the Government believe that the Race Relations Act has made a tremendous contribution to our society, and I repeat the tributes paid to its architect, the noble Lord, Lord Lester. We sympathise with the objective of ensuring that the Bill does not outlaw special treatment for those in need of protection on humanitarian grounds, such as the recent special exercise in relation to Kosovan Albanians. But we do not believe that the proposed amendment would provide adequate legal protection for the immigration system as a whole. That is the important point.

The operation of immigration policies necessarily and legitimately involves differential treatment between individuals based on their nationality and, more rarely, their ethnic or national origins. In our view, the existing exemption for immigration and nationality functions strikes the right balance between providing victims of unlawful direct discrimination with an effective right of action and protecting necessary discriminatory activity in the exercise of immigration functions which is required or authorised by Ministers or by legislation.

The pressures on the immigration system, of which noble Lords will be well aware, are such that we cannot allow any ambiguity to arise in relation to the application of this legislation to immigration staff. We know from experience that the immigration and asylum system, including the appeal system, is frequently used by those with an unfounded claim who are seeking to delay and frustrate the process. That is why we took firm action in the Immigration and Asylum Act 1999 to streamline the process to produce a fairer, firmer, faster system.

This Bill must make it crystal clear what is unlawful and what is permissible in the public interest. We believe that the existing formulation in Clause 1 (new Section 19C) does so. Activity which is authorised or required by law or by Ministers will be lawful, as will be personal decisions taken by Ministers in the public interest. Unauthorised acts of direct race discrimination will be unlawful, and the Government will have no hesitation in dealing very firmly with them.

Failure to provide clarity in this legislation would be unwise, both as an act of policy and to ensure that staff are fully protected when they carry out the duties Parliament and Ministers have laid upon them. The Government do not share the noble Lord's confidence in the adequacy of the existing legal safeguards provided by the Race Relations Act. Section 41 of the 1976 Act protects discriminatory acts which are carried out "in pursuance to" statutory provisions or ministerial arrangements. But the courts have adopted a very narrow interpretation of "in pursuance to". For acts to benefit from Section 41 they must be actually "required" by law.

However, the operation of the immigration system necessarily requires the exercise of discretion by Ministers and by appropriately authorised officials in accordance with published, transparent instructions. For example, the Immigration Service at ports requires the ability to target and prioritise certain nationalities for particular scrutiny where it has intelligence that particular national travel documents are being abused or where there is intelligence that individuals or groups of one nationality are presenting themselves as the nationals of another country in order to benefit from compassionate policies or asylum procedures. There is chapter and verse on that. There are many such examples of such activity.

The Immigration Service and Integrated Casework Directorate need the ability to carry out special "nationality specific" exercises involving the fast tracking of cases and even the use of detention in response to sudden or sustained influxes of certain nationals, most recently from eastern Europe, seeking to circumvent the control. Entry clearance officers need the ability to treat individuals differently on various grounds. Examples include if their country is associated with state-sponsored terrorism or has a track record of hostile intelligence activities or if their country is known to have lax or inappropriate passport issuing arrangements. Such activity is a necessary part of operating the immigration system but may not be considered by the courts as strictly required by law.

There are also many examples of where the immigration system discriminates positively in favour of individuals on the basis of their nationality or ethnic or national origins. One example is the special treatment for Kosovan Albanians during the recent conflict in the Balkans. Kosovan Serbs were not treated the same way, for entirely understandable reasons. There are other examples where guidance to asylum caseworkers directs that the one ethnic or national group from a particular country should be treated differently from another. For example, our policy in relation to persons originating from Bosnia-Herzegovina is to grant exceptional leave where the applicant's ethnic group is no longer in the majority. A Bosnian Croat originating from a Serb area would not be expected to return there, nor would a Bosnian Serb originating from a Muslim area.

Current asylum policy makes a distinction between Kosovan Serbs and Kosovan Albanians where the basis of claim is ethnic origin. The former are a minority and may qualify for asylum, while the latter may be refused and returned. The ethnic or national origin of the applicant in cases involving various other nationalities is also a key consideration in the determination of applications for asylum. It would be impossible to operate a rational asylum determination process if caseworkers were unable to make such distinctions. That is why the Bill makes it clear that discriminatory activity which is required or authorised by law, or by Ministers, cannot be considered to be unlawful.

Lord Lester of Herne Hill

Before the Minister does so—I am grateful to him for giving way—he has not yet given a single example of discrimination based on a person's ethnicity as distinct from all the other considerations. We are dealing here with only direct discrimination, not indirect discrimination. I should like to know from the Minister whether there is any example where a person's race—that is what ethnicity is about; it is a part of race—is the basis for treating him worse than someone else. Perhaps I may give an example: the infamous one of the British Asians from East Africa who were refused entry to this country by Mr Callaghan's government by statute. That was held by the European Human Rights Commission to be inherently degrading treatment because it was based on their ethnicity.

Under the Bill as it stands there is nothing to stop the Home Office refusing to allow British Asians from East Africa in a similar situation coming here, not on the basis of their colour but of their ethnicity. Surely that is not what the Minister has in mind and surely the Home Office would not dream of discriminating against someone on the grounds of their ethnicity? If that is indeed the case, will the Minister please give some examples of where they have done so? I personally should be deeply shocked if that was so.

Lord Cope of Berkeley

Before the Minister responds, I agree with what the noble Lord, Lord Lester, has just said. It did not seem to me that the examples given by the Minister of Kosovar Albanians or Serbs were based on their ethnicity but on their genuine fear of prosecution. That is, after all, what asylum is supposed to be based on. Therefore, those examples do not answer the questions which I asked.

6.30 p.m.

Lord Bassam of Brighton

I should probably beg to differ, but I am open to looking at the matter further. Perhaps it would be wise for me to reflect more on the point which has been made and reiterated. We take the view that the cases of the Kosovar Serbs and the Kosovar Albanians are exact examples of why positive discrimination may be necessary. That is why, in those instances, we believe that the way in which we have begun to phrase the legislation is right. However, I shall reflect more on the comments made by the noble Lord in his intervention.

I turn to our international obligations. The noble Lord suggested that the exemption for immigration and nationality functions would breach this country's international obligations under the UN Convention Relating to the Status of Refugees, the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. The entitlement to immigration, asylum and nationality applicants is detailed in the immigration and nationality enactments listed in Clause 1 of the Bill and in subordinate legislation such as the immigration rules.

The exemption does nothing in our view to rescind or restrict rights or entitlements provided in existing legislation; it simply allows that legislation to continue as Parliament, in our view, intended. It also provides the immigration authorities with the necessary latitude to conduct their business rationally, including targeting resources where there is a concerted attempt to abuse the control or where there is a compelling need for special treatment for a particular group on humanitarian grounds. The exemption does not require Ministers to do anything contrary to their international obligations. The discretion which it gives to Ministers still has to be exercised bearing in mind their international obligations. We believe that to be an important point.

It is clear that these are difficult issues. The Home Secretary and I are grateful to the noble Lord for meeting us. He has enormous experience in the field and we are happy and pleased, as ever, to acknowledge that. Having said that, we feel on reflection that we need to maintain the safeguards set out in Clause 1 in relation to immigration and nationality functions. The noble Lord may not agree, but on the basis of what has been said, he should feel able to withdraw Amendment No. 10. The same perhaps applies to Amendment No. 11 tabled in the name of the noble Lord, Lord Cope, which has a similar effect.

Lord Lester of Herne Hill

The Minister has repeatedly used the word "safeguards" in reference to new Section 19C, b y which he means safeguards for the Home Office. We are concerned about safeguards for the individual. There are no safeguards in Section 19C as it stands. It say; that it will not be unlawful for a relevant person to discriminate against another person on grounds of ethnic origin in carrying out any immigration or nationality functions provided that the relevant authorisation has been given. There are extremely broad powers of authorisation. As it stands, it applies to the entire immigration functions of the Immigration Service and even to the entire nationality functions of the nationality service of the Home Office.

I have attempted in my amendment to meet the need for the avoidance of doubt where humanitarian concerns are at stake. I do not understand what was wrong with the situation in 1976 when Section 41 was written into the Act. That would be quite properly narrowly construed, of course, because the concern was with the liberty of the subject. The Home Office does not want race discrimination to be practised by the immigration arid nationality department without good reason. That will be viewed with great concern by immigrants and their descendants in this country as giving a blank cheque to some future government to discriminate on blatant grounds of ethnic origin.

I am glad that the Minister has indicated that he would like to reflect upon the matter. I do not intend to press for a vote this evening, but I give notice that I should like to return to the matter. I hope that he will come back to us with a fresh, better, more narrow exemption clause. That is what we are looking for. It is common ground that some kind of cover is needed for differences of treatment on the basis of nationality. I hope that in the gap between now and Report stage it will be possible to find a narrower amendment which gives the Government what they legitimately need but contains effective safeguards against abuse in conforming to our international treaty obligations. On that basis and with that indication, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 11 not moved.]

Lord Lester of Herne Hill moved Amendment No. 12: Page 3, line 12, leave out ("or to any acts leading to such a decision").

The noble Lord said: In the ordinary course of events, my noble friend Lord Dholakia would have been moving this amendment and other related amendments because he is particularly expert in those areas. Unfortunately—it is something which should not happen to any noble Lord—he has lost his voice. Therefore, he is sitting mute, but listening and giving his moral and spiritual, although not vocal, support. I shall have to be the next best thing and I will do it briefly.

The purpose of the amendment is to remove the exemption from the race relations legislation of acts leading to a decision not to prosecute. The amendment provides that such racially discriminatory acts are not to be exempt from being found to be unlawful under Section 19B. The valid justification for exempting from Section 19B decisions not to institute criminal proceedings—namely, to avoid a criminal trial in civil proceedings under the Race Relations Act—does not apply to the series of acts leading up to a decision not to prosecute, which could, for example, include significant but remote acts by the police in gathering or rejecting evidence. In particular, the vagueness of the words, acts leading to such a decision", is remarkable. Almost any police or prosecution practice that involved the gathering or assessment of the evidence could possibly come into a category of that breadth. Again, that stems from the Lawrence affair and the Macpherson report. We greatly hope that the amendment will be acceptable to the Government. I beg to move.

Lord Cope of Berkeley

As the noble Lord, Lord Lester, said, the Lawrence case and the Macpherson Report are extremely relevant to this amendment. In that case, decisions not to prosecute were crucial, even to the extent that a decision to bring a private prosecution was made. Therefore, it seems to me that if matters leading up to a decision not to prosecute are kept out of the Bill, the Bill cannot be said to have answered the concerns which arose from the Lawrence case, which is, after all, fundamental to what the Government have said.

There is a real dilemma here; that is, if a decision is taken not to prosecute and it is believed by some that the decision was racially motivated, we could reach the position where in effect the criminal trial was being held but under the guise of a race relations case. That would be most unsatisfactory. Therefore, the issue presents a real dilemma. I do not believe that it is answered easily either by the clause as it stands or, for that matter, by the amendment. Having read the Macpherson Report, I do not believe that it is easy to proceed on the assumption that a decision not to prosecute can ever be thought to have arisen for racial reasons; that is, with investigations not having been influenced by racial decisions. That is a difficult way to start and is, of course, the position which the Bill takes. However, it is not an assumption which I find a satisfactory basis for legislation.

At the same time, I cannot escape from the dilemma of not wanting a criminal trial to take place on totally the wrong basis. Therefore, I shall listen extremely carefully to what the Minister says on this as, of course, on all the other amendments, and I shall study his words carefully. Whatever the decision, it will be unsatisfactory in one direction or the other, and a balance must be held.

Lord Bassam of Brighton

I believe that the noble Lord, Lord Cope, has pointed us rather well in the direction of the dilemma. We may well want to look closely at what the noble Lord, Lord Lester, said in moving his amendment. The Government's policy objective with Section 19D of Clause 1 of the Bill is in effect to preserve the role of the criminal court as the sole forum for determining guilt. I believe that that must be plainly right. We understand the purpose of the amendment in the name of the noble Lord, Lord Lester, and the noble Baroness, Lady Howells. The wording, or to any acts leading to such a decision", is broader than ideally it should be, and I believe that that point is accepted. However, we would not want to delete those words without providing better ones because we believe that the reasons for a decision not to prosecute, or, even worse, part of those acts which are an essential part of the decision-making process, should be protected as easily from an action under Section 19B as the decision itself.

Therefore, the Government will wish to bring forward an amendment which achieves our objective in relation to the decision-making process but without, as now, excluding all acts leading to a decision not to prosecute. On that basis, I hope that the noble Lord, Lord Lester, and other movers of the amendment will be happy and prepared to withdraw Amendment No. 12 as it currently stands.

6.45 p.m.

Lord Lester of Herne Hill

We are certainly happy to do so, subject to seeing the fine print. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 13 not moved.]

Clause 1 agreed to.

Schedule 1 [Public Authorities]:

Lord Cope of Berkeley moved Amendment No. 14: Page 10, leave out lines 18 to 32.

The noble Lord said: This amendment seeks to leave out the two subsections which bring the Scottish Administration and the National Assembly for Wales within the scope of the Bill. I should say at once that I do not intend to press the amendment. It is a probing amendment designed to give the Minister an opportunity to explain to the House what is happening with regard to those two devolved Administrations in respect of the Bill. Quite obviously, the functions which are devolved to Scotland are in part covered by the Bill, particularly those relating to the law, and so on. Therefore, I should like to know whether the Scottish Parliament or, for that matter, the Scottish Administration has been consulted on the matter and, if so, what view was taken.

To some extent, in the case of Scotland the question is addressed also to Peers on the Liberal Democrat Benches because they are in government in Scotland in coalition, and they, too, may be able to answer the question. However, the same question applies also with respect to the Welsh Assembly. Has the Assembly or the Administration in that part of our Kingdom been consulted and, if so, with what effect?

I have another question which risks showing my ignorance of the devolution legislation in which I took very little part when it passed through your Lordships' House. However, it struck me as odd that the paragraph relating to Scotland is entirely in terms of an office holder of the Scottish Administration—a Minister, in fact—and the staff of the Administration.

As far as concerns the National Assembly for Wales, that paragraph is expressed in terms of the Assembly. Does that mean that the Assembly Members in Wales are covered by the legislation and are subject to it, whereas in Scotland the Members of the Scottish Parliament are not covered but only the actions of the Ministers in Scotland? That would be most odd.

It is interesting to consider whether, in its discussions on matters in Wales, the Assembly should be prevented from doing things which our national Parliament at Westminster and the Scottish Parliament are allowed to do. That would be to discriminate against the Welsh in that respect, which I am sure none of your Lordships would want to do. However, there may be a perfectly valid reason for the way in which the devolution legislation is set up which leads to the difference in wording. But it is a peculiar difference in wording to try to confine it to the Scottish Administration in Scotland but to extend it to the whole of the National Assembly for Wales. In both cases, there is a let-out in respect of any function relating to the making, confirming or approving of Orders in Council and other instruments. In relation to that particular function of the two bodies, there is a let-out.

I am not quite sure whether that means that an Order in Council can be made which is discriminatory and which would otherwise be unlawful under the Act. I doubt whether it does, but it occurred to me to wonder whether that covered the Order in Council itself. It covers the making of an Order in Council in both the devolved jurisdictions, but at the same time it would obviously not be desirable for this Parliament and your Lordships' House to permit the devolved legislators in those two parts of our Kingdom to make legislation which would otherwise be unlawful. Apart from anything else, that would discriminate against the English. It is a specialised example, as it were, of the West Lothian question.

There are two main points which concern me. The first is whether those administrations and legislatures have been consulted about this legislation and their position with regard to it. Secondly, why is there a difference between the two devolved administrations?

Lord Lester of Herne Hill

One of the curious features of our constitutional arrangements is that unlike every other democracy that is written down in an intelligible form in a document of not more than 100 pages, we have to read Scotland, Wales and Northern Ireland legislation and a whole lot of local government legislation. The Greater London Authority Act is three times longer than the constitutions of most other countries. Out of that opaque mess, one must somehow try to extract principles.

I understand that the motive behind this amendment is to probe rather than to remove Scottish and Welsh matters from the purview of the Race Relations Act. The only points that I wish to emphasise are that, first, whatever the niceties of devolution, it is obviously essential that every public authority in the United Kingdom—and we are looking at Great Britain because it applies equally to Northern Ireland—must comply with the duty not to discriminate on racial grounds.

As I understand it, the reason that the Scottish Administration and the National Assembly for Wales have been included in the schedule in that way is in order to include as much as possible without violating the agreement that was reached about the powers of the Scottish Parliament as such. But as I understand it too, under the devolution legislation for Wales and Scotland, the national minimum standard—the Race Relations Act 1976—is not in any way to be derogated from either in Scotland or in Wales. They are not matters which have been devolved to be amended by the Scottish Parliament or the Welsh Assembly. It is vital that our rights as citizens not to be discriminated against should not vary according to the particular part of the territory of a particular nation or region of the United Kingdom in which we happen to be at any one time. That seems to me to be the principle and I hope that the Minister will be able to confirm that that is the purpose of what is in the schedule and in the devolution schemes.

Lord Bassam of Brighton

When I read the amendment, the reasons for it were not entirely clear to me. I am now much clearer and I am grateful to the noble Lord, Lord Cope, for that clarification.

If the Committee were to accept the amendment, it would have the effect of removing from the scope of the Bill all non-legislative functions of the Scottish Administration and the National Assembly for Wales. This amendment would leave Scottish Ministers in the Scottish Executive and their civil servants, as well as the National Assembly for Wales, outwith the extended scope of the Race Relations Act. I am not sure that that is what the noble Lord intended but that would be its effect. That is certainly contrary to what we are trying to achieve.

The amendment would create an anomalous situation contrary to the fundamental principle which we hold dear and which the noble Lord, Lord Lester, clearly supports; namely, to have a consistent approach to race relations throughout Great Britain. We believe that principle to be extremely important. Therefore, race relations is a reserved matter.

The inclusion of the Scottish Administration and the National Assembly for Wales is intended to ensure that the Administrations in Scotland and Wales are covered by the Bill while treating their legislative powers in the same way as those of Westminster. In our view, that approach is clearly correct and is the right way to proceed. As Members of the Committee will recall, the Scotland Act and the Government of Wales Act reserve equal opportunities to their Parliaments. Therefore, it is for this Parliament to legislate on such matters.

Perhaps I may clarify the two points raised by the noble Lord, Lord Cope. I can confirm that there was the necessary consultation in relation to the coverage of the Bill, and satisfactorily so. The coverage in Westminster, in Scotland and Wales will be analogous. It is simply, as the noble Lord said, because of the different constructs of the Administrations that the wording is different. It is the basis on which those Administrations are constructed which leads to the different wording. However, I confirm that the effect is the same. Therefore, on that basis, I hope that the noble Lord will withdraw the amendment.

Lord Cope of Berkeley

I listened carefully to the Minister in relation to the difference in the wording. I shall take a leaf out of his book and reserve the right to write to him on that matter.

He said that there had been consultation but he did not say whether it was the Ministers or the Parliament and Assembly which had been consulted. I am concerned as to whether the Parliament and Assembly have been consulted, particularly in the case of the Scottish Parliament because although, as he rightly says, those matters are reserved, matters of the administration of law are not reserved. Have the Parliament and Assembly been consulted or only the Ministers?

Lord Bassam of Brighton

I shall make clear to him in correspondence exactly what has been undertaken by way of consultation so that there is clarity. I am happy to provide copies to other Members of the Committee interested in the issue and I shall place a copy of the letter in the Library.

Lord Cope of Berkeley

I am grateful to the Minister. As I said, this is a probing amendment and therefore, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Cope of Berkeley moved Amendment No. 15: Page 10, line 36, after ("being") insert ("on active service or").

The noble Lord said: This paragraph in the schedule adds the Armed Forces to the Bill and brings into effect the Bill in respect of the Armed Forces. This particular sub-paragraph takes out any unit or part of a unit which is assisting the Government Communications Headquarters in carrying out its functions so that it is not covered for these purposes. I entirely support that. My amendment suggests that the Armed Forces should not be covered when they are on active service.

The reasons are that we all know how incidents in war can lead to considerable controversy, sometimes over a very long period. For example, there is still a great deal of controversy over some actions which were taken, for example, in the Falklands war—the sinking of the "Belgrano"—in World War 2 and in World War 1. I happened to see recently a very interesting programme on the television about West Indians being discriminated against within the Army during World War 1.

It does not seem to me that we want long recriminations in relation to what happened in the very difficult and special circumstances of active service to be dragged through the courts on a racial basis. I have no objection to people discussing incidents which happen in war. That is obviously entirely valid. But it is not an appropriate basis from which to mount court cases and so on under legislation of this character.

I should make it clear that the phrase "active service" is relatively narrow. Of course, quite often our Armed Forces act in aid of a civil power; for example, in Northern Ireland they are not on active service but they are acting in aid of a civil power. In that situation they are subject to the law in all respects. Indeed, there has been some controversy about that, as noble Lords will recollect, and criminal cases have arisen out of actions taken by soldiers pursuing their duties in Northern Ireland that have been quite controversial.

My amendment does not attempt to exclude the Armed Forces when they act in the aid of a civil power but only when they are in a war situation on "active service". That is the situation of greatest danger, when decisions have to be taken quickly. At that time I do not want our Armed Forces to have to look over their shoulders wondering whether they will finish up in court arguing the situation on a racial basis or, for that matter, on any other basis. I beg to move.

7 p.m.

Lord Lester of Herne Hill

I do not agree with this amendment. Whether on active service or not, members of Her Majesty's Armed Forces ought not to practise direct racial discrimination. They should not practise that as employers and they should not practise it in carrying out their duties on behalf of the Crown. They are obliged not to do so under international law and they are also obliged not to do so in the employment field under the Race Relations Act 1976. In that Act there is a provision that deals with complaints of racial discrimination against the Armed Forces in a particular way so that they do not go to an employment tribunal under Section 54, unless the complainant has made a complaint to an officer under the service redress procedures applicable to him and has submitted that complaint to the defence counsel under those procedures and the defence counsel has made a determination, and so on.

Perhaps it would be right for there to be no colour-bar, no race discrimination in the Armed Forces for the reasons given by the noble Earl, Lord Onslow, in an earlier debate today. It is absolutely vital that the Armed Forces cannot discriminate on racial grounds, whether on active service or otherwise. In my respectful view, it would be deplorable if we were to authorise that kind of discrimination whether in war or in peace. We do not need to do so. I hope that we win our wars fairly and not on a discriminatory basis.

Lord Burnham

It appears to me that the noble Lord, Lord Lester, is not aware that this Government, and previous governments, have been guilty of serious racism. At no stage have they sent Irish regiments into Northern Ireland. If that is not racism I do not know what is.

My noble friend's amendment would cover the problem of "on active service". It is a remarkably familiar song to me because at present I am involved in singing, with other Ministers on the Government Benches, the Armed Forces Discipline Bill, where almost exactly the same conditions apply. We consider that it is not possible to use standards of normal behaviour when the Armed Forces are "on active service". We believe that the words "on active service" cover the requirements of the Geneva Convention with regard to the European Convention on Human Rights and the Human Rights Act. However, it is not sensible to expect that Armed Forces on active service should be bound by the same conditions as pertain in more peaceful and more normal times. Therefore, I have much pleasure in supporting my noble friend's amendment.

Lord Bassam of Brighton

I doubt that noble Lords opposite will be surprised that I cannot agree with the general approach adopted in the amendment. We are keen to ensure that all public authorities are covered by provisions of the Bill unless there are specific reasons for them to be exempted. The effect of the amendment as tabled would be that units of the Armed Forces would not be covered while on active duty. We see no reason for such an exemption. Since all personnel currently serving in the forces can be deemed to be "on active service", that could place the Armed Forces outside the scope of the Bill.

Lord Burnham

The phrase "on active service" has a specific meaning. The meaning can be used under the Geneva Convention. We do not have time at the moment to go into it, and nor should we, but it means someone at the sharp end.

Lord Bassam of Brighton

No doubt the noble Lord is well advised in such matters. We believe that it could place the Armed Forces outside the scope of the Bill, which for us would be unacceptable. Indeed, the Ministry of Defence and the Armed Forces themselves see no reason why they should be placed outside the scope of the Bill.

That would undermine the Armed Forces' commitment to play a leading role in the Government's drive to achieve greater racial equality by demonstrating a real lead in the public sector generally and nationally. We believe that it could also damage the working relationship that the Armed Forces has with the Commission for Racial Equality through the MOD/Commission for Racial Equality Partnership Agreement. That is something that has been of tremendous value and great progress has been made through that Partnership Agreement.

The purpose of new paragraph 5(2) is simply to ensure that Section 19B does not extend to those units of the Armed Forces which specifically assist the Government Communications Headquarters, but only when they are assisting GCHQ. At such times they are effectively part of GCHQ, which is explicitly excluded from the Bill. That needs to be understood.

The intelligence and security agencies, including GCHQ, had hoped to be included within the Bill. However, to have included them would have required changes to the Bill, with special clauses introduced to safeguard against claimants misusing certain provisions to undermine the agencies' operational effectiveness. For example, a claimant could have used a Section 65 questionnaire to fish for sensitive information from the agencies. The necessary safeguards would have had, in practice, the same effect as excluding the agencies from the Bill. It is better to make the exemption clear rather than to obscure it behind special clauses. I hope that the noble Lord, Lord Cope, and the noble Viscount, Lord Astor, will be prepared to withdraw Amendment No. 15 on the basis of what has been said and our clear commitment to inclusion.

Lord Cope of Berkeley

In order to consider the matter and the points made by the Minister further, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cope of Berkeley moved Amendment No. 16: Page 12, line 29, at end insert— (" . Any person or body corporate in the performance of any contract with any authority or body included in paragraphs 11 to 42 of this Schedule to carry out any public function which the authority or body would otherwise carry out and which would otherwise he included in this Schedule.").

The noble Lord said: I beg to move Amendment No. 16 standing in my name on the Marshalled List. The amendment deals with contractors, but primarily local authority contractors. We are concerned that the same law should apply to local authority contractors as applies to local authorities when they carry out work directly. I do not suggest that this is not the intention of the Government—I believe that it is—but perhaps the Government can explain whether they are subject to the Bill in some other way or whether an amendment of this character is needed.

I believe it is obvious that if a refuse collecting lorry fails, for example, to collect the rubbish in a street because that street has a high proportion of ethnic minority residents, a case could follow. That would certainly be the case if the local authority's staff were responsible for the rubbish collection. However, I am less clear about what would happen if the authority delegates that duty under a contract to another firm, as happens a great deal these days. Sometimes that leads to better efficiency. In that case would the same law apply? I believe that it should, but if it does not, this amendment may be required.

Lord Lester of Herne Hill

This amendment illustrates the value of the Section 6 of the Human Rights Act definition of "public authority" under which it would certainly be caught. It must be right that subcontracting of this kind in the exercise of public functions be covered by the Act. I hope that if the Section 6 approach is rejected, this area will be clearly covered by the orders made either on the face of the Bill or by Ministers.

Lord Bassam of Brighton

We, like other noble Lords, are keen to ensure that private sector companies carrying out public functions are covered by the new Section 19B. But we do not believe that the amendment as tabled would achieve the same in the most effective way. Our proposal is that we cover such functions using the order-making power at new Section 19B(5) and that we define such functions by reference to the legislation that authorises the private sector body to carry them out.

That will achieve three ends. First, it will ensure that there is complete clarity on the part of such private sector bodies that they are covered by the legislation. Secondly, it will allow the Government the flexibility to add and remove classes of body as new functions enter the private sector or return to the public sector. Thirdly, it will allow for consultation with the private sector bodies involved which can only reinforce their understanding of the legislation. We believe it is important to take the spirit and cultural feeling of the legislation into their activities.

We continue to believe that this flexibility and clarity can best be achieved by using the order-making power to ensure comprehensive coverage rather than using a general descriptor on the face of the schedule. I should add that the suggested amendment would require the courts to decide what would otherwise be included in the schedule. That would be a difficult task for the courts. I trust, therefore, that the noble Lord, Lord Cope, will feel able to withdraw his amendment.

Lord Cope of Berkeley

The proposal will achieve a fourth object; that is, much greater complexity of the law. I expressed a view at an earlier stage in our debate this afternoon that law which involves enormous numbers of statutory instruments in order for it to be understood is undesirable. The more that can be put into primary legislation the better. But this brief discussion highlighted in a specific context the important problems of the definition of "public authority", which we were discussing on Amendment No. 1. Therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

7.15 p.m.

Clause 2 [Certain appointment functions outside the employment field]:

Lord Cope of Berkeley moved Amendment No. 17: Page 3, line 35, after ("group") insert ("or nationality").

The noble Lord said: Clause 2 deals with appointment functions outside the employment field. Generally speaking, it ensures that those are dealt with properly under the Bill.

Subsection (5) takes out some appointments in relation to, an appointment to an office or post for the purposes of a private household or where, if the holding of the office or post were employment, being of a particular racial group would be a genuine occupational qualification for the job". It is right that in some appointments to be of a specific racial group is a genuine occupational qualification. But it also seems to me that in some appointments nationality will also be important. I think particularly of appointments made by Ministers of the Crown to an international body. For example, it would be odd not to require a British judge going to an international court to be British. To oblige the Minister to ignore nationality in choosing somebody to serve in the international court would be extremely odd.

Nowadays we are taught that we must consider nationality in terms of Scotland, Wales and Ireland also. There may be times when committees are created when it would be appropriate to have a Scottish, Welsh, Irish or even English representative in a specific post and the Minister should be able to make that appointment without being accused of breaching the legislation. That is why we seek to insert the word "nationality" into this exception. I beg to move.

Lord Bassam of Brighton

I am puzzled as to the purpose behind this amendment, despite having listened carefully to the noble Lord. We examined this matter carefully and could not see that the tabled amendment would have any effect at all.

Section 3(1) of the Race Relations Act 1976 provides that, 'racial group' means a group of persons defined by reference to colour, race, nationality or ethnic or national origins". Therefore the reference in Clause 2(5) to "racial group" means that decisions made on the basis of an individual's nationality are automatically subject to the provisions of this clause. For that reason we cannot see any merit in the amendment. I therefore invite the noble Lord to consider it again and to withdraw it at this stage.

Lord Cope of Berkeley

That is the most satisfactory answer we have had this afternoon, apart from when the Minister said he would consider an amendment moved by the noble Lord, Lord Lester. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 agreed to.

Lord Cope of Berkeley moved Amendment No. 18: After Clause 3, insert the following new clause—

("Disclosure of information

DISCLOSURE OF INFORMATION After section 71 of the 1976 Act there is inserted—

"Disclosure of information. 71A. Nothing in this Act shall require a public authority to disclose any information which would be protected from disclosure under the Freedom of Information Act 2000."").

The noble Lord said: Another place is presently discussing the Freedom of Information Bill. It will provide for more information to become available and for some information to be protected. If it is decided, in the course of the debates on that Bill—I do not want to argue about the individual categories of information—that certain types of information belonging to the state should properly be protected because they affect the security of the state, advice to the Crown or diplomatic relations, then that information should not come into the public domain as a result of questionnaires and so forth from the Commission for Racial Equality or the process of this Bill grinding through.

It does not seem to me that, even for so important a purpose as this, we should overrule the general provisions on freedom of information and particularly on information which Parliament decides in due course should be protected. I am not sure that the wording in the measure is the best way to achieve joined-up government in this respect. Advice may prove a better way to achieve that. Nevertheless the new clause that I propose in the amendment raises a valid point. I beg to move.

Lord Lester of Herne Hill

We oppose this amendment. The 1976 Act already carefully restricts the disclosure of information obtained by the Commission for Racial Equality in using its coercive investigation powers. That is what Section 52 of the Race Relations Act does. It makes it clear that no information given to the commission by anyone may be disclosed in connection with a formal investigation except on the order of a court or with the informant's consent and so on. Safeguards are carefully set out there to ensure that where this statutory agency obtains information by compulsion, it cannot be disclosed except in narrowly defined circumstances. Indeed the circumstances are excessively narrow in some senses as the poor old CRE cannot even inform the Northern Ireland CRE or the British Equal Opportunities Commission about information obtained in a race investigation, for example for the purposes of a sex discrimination investigation. There you have Parliament imposing clear safeguards in this comprehensive code.

As regards the questionnaire procedure under Section 65, again the courts have to preserve the rights of individuals to make sure that there is no oppression in the way that that is used. As regards what used to be called "discovery", the disclosure of information in court proceedings or in proceedings in employment tribunals, there is a comprehensive code to ensure that there is no misuse of information. For example, it cannot be used for a collateral purpose. You cannot use information obtained in discovery in courts or in employment tribunals under this Act for a collateral purpose. It cannot be used for some other purpose. Therefore there are effective safeguards built into the common law and into the statute. To use the open-ended reference to the Freedom of Information Bill which is not even law yet and which seeks to serve a whole variety of quite different purposes would, in our view, be misconceived and indeed would be quite dangerous because it might stultify the effective enforcement of this measure and make it more difficult for individuals to bring and win their cases. For those reasons we oppose the amendment.

Lord Bassam of Brighton

Again, I am not entirely clear as to what point the amendment seeks to address. Therefore I hope that the Committee will forgive me if I do not meet the point that has been raised by the noble Lord, Lord Cope.

As we see it, the Freedom of Information Bill is about the right of the public to have access to information held by public authorities. That much is clear and that much is agreed. The regime it puts in place does not apply to information that public authorities are required to disclose to the courts. It is about extending, not restricting, the right of access to information.

The Government would of course resist any amendment that had the effect, or intended effect, of applying the freedom of information regime to the courts when dealing with Race Relations Act cases. This would significantly restrict the information available to the courts and seriously hamper their ability to decide Race Relations Act cases. For example, the courts could be denied access to information which might be crucial to a discrimination case because a respondent claimed immunity under the freedom of information legislation. We do not think that that would be right.

The Government would also resist an amendment that restricted—as we believe this amendment would—the information that must be provided to the Commission for Racial Equality as it goes about its proper statutory duties, including the conduct of formal investigations. If, on the other hand, the amendment seeks to ensure that the normal freedom of information regime should apply in relation, for example, to information that should be provided in Section 65 questionnaires, then it is unnecessary as this will automatically be the case. For those reasons the Government would not therefore wish to accept this amendment. Having clearly set out our position, I invite the noble Lord to withdraw his amendment.

Lord Cope of Berkeley

It sounds as if the point I raised has been at least partly covered already by other parts of the legislation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Burlison

This may be a convenient time to move that the House do now resume. In moving this Motion it may be for the convenience of the Committee to know that by agreement with the usual channels it is not intended to resume the Committee today following the Second Reading of the statutory nuisances Bill. As indicated on the Whip, further proceedings on the Bill will be resumed on Thursday next. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.