HL Deb 13 January 2000 vol 608 cc754-88

3.36 p.m.

Lord Bassam of Brighton

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

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

On Question, Motion agreed to.

House in Committee accordingly.


Clause 4 [Criminal investigations and proceedings]:

The Principal Deputy Chairman of Committees

Before the noble Lord, Lord Lester, makes his speech, I should perhaps point out that if Amendment No. 19 is agreed to, I shall not be able to call Amendment No. 20 under the pre-emption rules.

Lord Lester of Herne Hill moved Amendment No. 19: Page 6. line 7, leave out from ("19B,") to ("a") in line 9 and insert ("the court in granting such relief or remedy, or making such order, within its powers (other than the award of damages) shall have regard to the need to avoid serious prejudice to").

The noble Lord said: The Bill as it stands provides that no remedy other than damages shall be obtainable in an action brought against the police or the prosecution service unless the court is satisfied that such a remedy will not prejudice a criminal investigation or prosecution. In other words—if one can penetrate the double negatives in that rather unattractively drafted provision—the court must essentially find that the remedy is harmless to any possible investigation before it may be granted. That is an extremely stiff test, made worse by the use of the highly imprecise word, "prejudice". No degree of prejudice is specified; any prejudice will do, with the result that the test is to be applied by the courts in a vague, ill-defined and narrow way.

That stiff and ill-defined test applies to all non-pecuniary damages, including declaratory relief. In practice, that means that even where there is a clear-cut case of intentional direct racial discrimination, the court will not even be able to make a declaratory order that the police or the prosecution have acted unlawfully until it has satisfied itself completely that no possible investigation or prosecution could in any way be hindered. That is quite unnecessarily narrow and frustrates the need for an effective remedy.

The amendment aims to remedy those serious defects by providing that in exercising its discretion—I emphasise that this is a matter of judicial discretion, on which our courts are eminently well suited to decide on whether there should be a remedy—in deciding whether to award a non-pecuniary remedy—that is, a remedy other than damages, which are in any case always awarded subject to the courts' discretion—the courts should have regard to the need to avoid serious prejudice to any potential investigation or prosecution.

The requirement in the amendment for "serious prejudice" means that there must be a possibility of real and substantive harm before a complainant who has suffered racial discrimination is deprived of the relief to which he would otherwise be entitled. The amendment is modest. It preserves the vital right of the accused to a fair trial while ensuring that those who suffer from the civil wrong of racial discrimination can obtain effective remedies. Therefore, it seeks to preserve that vital fair balance between the rights of the accused in a criminal case and the rights of victims in civil proceedings.

That will mean that a court will be more able to grant a declaratory remedy where discrimination has taken place. That is important for the very good practical reason that one needs to have what is called a "finding" by a court or tribunal of an act of unlawful discrimination as a precondition for subsequent monitoring and enforcement action by the Commission for Racial Equality; for example, under Section 62 of the 1976 Act. Unless there is a finding, which means a declaratory judgment or order, the Commission for Racial Equality is powerless to take steps effectively to stop the discrimination from happening again.

As the Bill stands, the CRE will be unable to mount effective enforcement action against the police or the prosecution service unless the court is satisfied that no prejudice can arise. In making it easier to obtain a declaration, the amendment makes it easier for the CRE to use its powers where necessary. We can trust the courts to make quite sure, as they always do, that they will exercise their discretion before granting a declaration and to ensure that it is granted only in the interests of the justice of everyone.

The Macpherson report made clear that the police and prosecution service must be subject to the full force of the Race Relations Act, Although that seems extremely technical, it is not at all technical. As it stands, the Bill threatens, in the way that I have tried to explain, to restrict severely the possibility of obtaining effective redress in those, it is hoped, very rare cases where the police service or the prosecution discriminate on racial grounds. The amendment aims to remedy that fault. I beg to move.

3.45 p.m.

Lord Cope of Berkeley

It is difficult not always to have some sympathy with the noble Lord, Lord Lester, particularly when he speaks about matters of which he has very great knowledge, as he does on this Bill and other issues.

I come to this matter very much as a layman. I am not a lawyer, as your Lordships know. However, in picking up some of the phrases used by the noble Lord, Lord Lester, it is important that where a question arises of a criminal investigation and a criminal trial, that should, at least in some respects while the matter is proceeding, take second place to the civil remedy for unlawful discrimination. I do not mean that every crime which is likely to lead to a criminal trial is inherently more important than unlawful discrimination. Clearly, unlawful discrimination can be of the most appalling character and can overtake all kinds of lesser criminal offences. That is what creates the difficulty in the whole design of this particular part of the Bill.

The noble Lord hoped that it would be possible for someone who believed he had suffered unfair discrimination at least to obtain a declaration or a decision on the matter from the tribunal or court. However, his amendment mentions relief and remedies as well as a declaration. During debate on the next amendment I shall come to the question of damages in comparison with other remedies. It seems to me that remedies of whatever character are likely to prejudice an investigation, perhaps even only in a small way.

However, I believe that a more serious point also arises from what the noble Lord, Lord Lester, said. I give an example: the police may be in the middle of investigating a criminal offence—perhaps a serious one—and take a little while to complete their investigations, find the people they are looking for and gather all the necessary evidence, and so on. That can take a long time. In the course of that, someone who is involved may believe that the person being investigated has committed unlawful discrimination and begin the legal process for civil action against that character. That may occur while the criminal investigation is still proceeding. If the tribunal or the court decides that there has been unfair discrimination, the CRE then becomes involved and, presumably, from that point on, every morning looks over the shoulders, as it were, of the police who are investigating the crime. The same is true not only of the police in the course of the investigation but of the prosecuting authorities in the course of deciding whether or not to bring a prosecution, as well as of the court itself once it leads to a case.

I believe that, at least in ongoing cases, the mechanism of the race relations aspect of the case should await the decision of the court on the criminal offence. To do anything else seems to me to risk prejudice. Of course, I fully accept that that does not entirely extricate us from the problem. In a way, criminal investigations which do not lead to a court case in a comparatively finite period of time are never fully closed. The file is closed, as it were. However, if new evidence arises, maybe some months or, in some cases, many years later—I read of such a case recently in a newspaper—the file can be re-opened. If one had to wait until the file was completely closed, the race relations aspects would never cut in at all. Therefore, I am aware that there is a difficulty about the matter. But with respect to the Government and the noble Lord, Lord Lester, I do not believe that either has been successful in hitting upon the solution to the problem.

Lord Lester of Herne Hill

I am sure that the noble Lord is right that our attempted solution may not be perfect. But is he aware that that is part of a quite normal problem in relation to civil and criminal proceedings? For example, if there are traffic offences and negligence proceedings the courts are frequently in the position of having to decide how to deal with civil proceedings—perhaps for negligent driving—and criminal proceedings for driving without due care or reckless driving.

Does not the noble Lord agree that it is a matter for the courts' discretion to decide how to deal with those problems rather than seeking to fetter them in a particular way in the context of this particular Bill?

Lord Cope of Berkeley

The noble Lord may be right. As I understand it from my limited knowledge of the matter, generally speaking, in the circumstances which the noble Lord outlined the negligence part of the proceedings waits until the criminal case has been completed. The civil proceedings then get going and a decision is made as to whether or not there was negligence.

Of course, in civil proceedings there is a different standard of proof and a different mechanism altogether for deciding the issue. That is part of the difficulty. The requirement in a criminal trial is to prove the matter beyond a reasonable doubt whereas the requirement in a civil case is less. That is one of the reasons that the negligence claim must be left until the criminal matter has been dealt with.

I agree with the noble Lord, Lord Lester, that a certain amount of discretion will have to be left somewhere, not least to overcome the problem to which I referred earlier of when exactly the file may be regarded as having been closed so that the civil issues can proceed. But at this point in time I am not entirely convinced that either formulation will provide a satisfactory answer to the problem.

Lord Bassam of Brighton

The noble Lord, Lord Cope, has begun to point us in the right direction. It is not an unusual or unique problem; but this amendment raises the issue of whether the test should be lower than that which is presently in the Bill.

The intention of the test in new Section 4A in Clause 4(1) is to ensure that as far as possible the courts are satisfied that relief sought does not prejudice the investigation or prosecution of the process, thus preserving the criminal court as the forum for determining guilt or innocence.

It also serves to reinforce our commitment to trying to achieve the aims of reducing crime and the fear of crime and dispensing justice fairly and effectively. That is an objective which we all share. The test proposed in this amendment would shift the balance of the test which the civil court should apply. In our view that may bring about the undesirable outcome of civil cases being allowed to proceed notwithstanding that there may be some adverse effect on the criminal process, which, again, falls short of serious prejudice.

Furthermore, in order to determine whether the remedy sought will cause serious prejudice—I use the noble Lord's term—the civil court will have to examine in more depth the substance of the criminal investigation. Such action may itself prejudice the investigation or subsequent proceedings, particularly where media publicity, as often is the case in such matters, begins to arise from the civil proceedings.

The proposed amendment may, therefore, undermine our overall objective of ensuring that granting the relief sought will not prejudice a criminal investigation, any criminal proceedings or decision to institute criminal proceedings. Prejudice in those circumstances means detriment.

Lord Lester of Herne Hill

But on that view I do not understand why the Government would allow a remedy in damages to be awarded. The present clause states that, No remedy other than damages shall be obtainable". Therefore, the Government are to allow a damages award to he made, even though the court is not satisfied about whether it will prejudice a criminal investigation. I do not understand the logic of saying that you can obtain damages for racial discrimination when there is a criminal investigation but you cannot obtain a finding of discrimination.

Surely an award of damages is predicated upon a finding of unlawful discrimination. If that is so, why cannot the court make a declaration giving the finding and therefore allowing the CRE to use its follow-up powers? I simply do not understand the logic of the Government's position.

I understand the logic of the position of the noble Lord, Lord Cope of Berkeley. He says that there should be no remedy, including damages. That is what I understand his later amendment provides. But the Government's position is that you can have a damages award but not a declaratory award. There can be no finding. I find that completely impossible to understand.

Lord Bassam of Brighton

The problem is the complexity of the test which the noble Lord seeks to impute into the legislation.

Lord Lester of Herne Hill

I am not addressing whether the prejudice should be serious or not. That is the question of the test. Let us leave that to one side and assume that I am wholly wrong and that the test should be simply one of prejudice. I am asking why the Government intend to allow damages to be awarded but not a finding of unlawful discrimination.

Lord Bassam of Brighton

I believe that I understand the point which the noble Lord, with his usual legal wisdom, is making. But is not the case that a declaration or injunctive relief could prejudice the case and also the issue of damages, which may be separate from that? Of course I listen to what he has to say on this point. But in these circumstances we are concerned that prejudice will mean detrimental disadvantage, which is what we are trying to avoid. We believe that there is little point in complicating what is essentially a straightforward matter by identifying degrees of prejudice.

We believe that this merely places an additional and unnecessary burden on the civil courts. Having listened to that point, I hope that the noble Lord will agree to withdraw Amendment No. 19. I shall take account of the points which he has raised in the debate. I shall read what he said in Hansard and reflect further upon it. But we wish to keep things simple. Therefore, although all these mechanisms may not be perfectly in place, I hope that we can make some more progress on this issue.

Lord Cope of Berkeley

I am sorry not to be entirely satisfied with the Minister's reply. When I move Amendment No. 20, I shall deal with the point about damages as opposed to other remedies.

I am concerned that the investigation process should not be prejudiced in any respect while it is proceeding, not only in the legal sense of prejudicing it but also in the more ordinary sense of the criminal investigation being delayed and confused. The police will be doing their best to solve the crime; to bring together the evidence; and to find the right people to charge and to give evidence. I am concerned that in the course of doing all that they may be delayed and the matter much complicated by the necessity to respond at that stage to the racial accusation.

Afterwards, when the investigation has run its course and the individual concerned has been prosecuted and the criminal aspect has been dealt with, those concerned should be answerable for what happened in the course of the investigation. But we do not want the life of the police, the prosecuting authorities and the courts made more difficult in the pursuit of solving crime by having those proceedings taking place at the same time.

I am not making a judgment that no racial discrimination can possibly be worse than all crime. Of course that is not the case. Slightly looser wording and perhaps the introduction of the word "serious" in respect of the prejudice may be a partial answer to this very difficult question. But it seems that we are still left with a considerable difficulty.

4 p.m.

Lord Bassam of Brighton

I begin to see more degrees of difficulty having listened to what both the noble Lord, Lord Lester, and the noble Lord, Lord Cope, said. I recognise what the noble Lord, Lord Lester, says about the implications of awarding damages. We will seek to reconcile the issue. The noble Lord, Lord Cope, is right about the complexity and the fact that the civil proceedings may have a bearing and undermine the validity.

Lord Goldsmith

Does the noble Lord agree that a degree of confusion creeps in over the question of remedy in the event that proceedings are concluded and whether proceedings should be continued during the time that there is a criminal investigation or criminal proceedings? My understanding of the Bill is that new subsection (4D) deals with the point made particularly by the noble Lord, Lord Cope, that proceedings would not continue for racial discrimination so long as there were criminal proceedings afoot or a criminal investigation had been decided upon. It happens to be the same test which the noble Lord, Lord Lester, criticises under new subsection (4A), but I do not see, unless I have misunderstood, that he seeks to amend that test under new subsection (4D). However, the test there is whether or not there will be prejudice to any criminal proceedings. Does the Minister also agree that the court is likely, when looking at prejudice, not to have regard just to any fanciful prejudice but to something which it is satisfied is, indeed, prejudice?

Lord Bassam of Brighton

That was a helpful intervention. I think that the noble Lord, Lord Goldsmith, has read the situation accurately. For that reason I believe it would be most helpful if the noble Lord, Lord Lester, would kindly withdraw his amendment. I am quite happy, as I said earlier, to pick up any loose points that may have arisen from today's debate. We believe that our simple approach is perhaps the best way forward.

Lord Lester of Herne Hill

I am grateful to everyone who has taken part, including the noble Lord, Lord Goldsmith, for a very helpful intervention with which I agree. I shall come later to new subsection (4B). It may require separate consideration. It is right that the Bill gives two kinds of protection of criminal investigations. One appears in new subsection (4A) and the other in new subsection (4D). New subsection (4A) deals with the remedies that can be granted for unlawful racial discrimination. New subsection (4D) deals with the kind of protective orders that are necessary to preserve the integrity of, for example, criminal proceedings.

To make clear beyond doubt what our position is, it is very important that the Commission for Racial Equality—which certainly supports the amendment—should be in a position to have findings of unlawful racial discrimination as the foundation for its monitoring and follow-up powers under the 1976 Act. The problem about awards of damages alone is that they do not qualify, technically, as a finding. But I repeat that it is wholly illogical to allow an award of damages to be made which is predicated upon there having been a finding of unlawful discrimination without allowing the actual finding to be made.

I can see that the defect in my amendment is that it may go too far in allowing, for example, injunctions to be granted that may be wholly unnecessary. If the Government do not do so themselves, I am minded to narrow the scope of my amendment at Report stage to make sure that a finding can be made or a declaration granted in addition to an award of damages, but not an injunction. That is very easy, technically, to do. One comes later to new subsection (4D). I hope that I have made our position clear. I hope that we can reach a consensus before Report stage as to how to reconcile the rights of the accused with the rights of victims in this context. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cope of Berkeley moved Amendment No. 20: Page 6, line 7, leave out ("other than damages").

The noble Lord said: This is a continuation of the previous debate. The point has already been made by the noble Lord, Lord Lester. I do not see what the difference is between the award of damages, on the one hand, and the other remedies which may be open to the court, on the other. Any other remedy, any other finding, is apparently likely, in some circumstances at any rate, to prejudice the criminal proceedings or the investigation whereas damages will never do so. That seems to me an inherently unlikely proposition to write into the statute book.

To put it at its lowest, I do not think that this amendment can do any harm. If damages never do look like prejudicing criminal investigations or proceedings, then the court would be able to grant them just as they could another remedy. On the other hand, if the amendment is not passed and the damages at some stage—in some circumstances which we may or may not be able to envisage at the moment—do seem likely to be prejudicial, then, with the Bill as it stands, nothing could be done about it. The prejudice would take place, and nothing at all could be done. At its lowest, it seems to me that the amendment has something to commend it. I commend it to the Committee.

Lord Bassam of Brighton

Our intention in framing new subsection (4A) is to strike the right balance between the interests of individuals in pursuing a legitimate claim under the Race Relations Act, on the one hand, and reducing delays in the criminal justice system, on the other, meeting the legitimate needs of victims and witnesses and promoting confidence in the criminal justice system.

The amendment tabled by the noble Lord, Lord Cope, and the noble Viscount, Lord Astor, would, as we understand it, remove the ability of a claimant under new Section 19B of the Bill to pursue any remedy in a case against the public prosecutor or investigator unless they could satisfy the civil court that the remedy itself would not prejudice the criminal investigation. That much is clear.

The main thrust of the Race Relations Act is to provide financial redress for victims of discrimination. We consider it highly unlikely that the award of damages would, of itself, prejudice criminal proceedings or investigations whereas other remedies, such as injunctive relief, may have that effect. For that reason we think it right that claimants should be able to obtain financial redress wherever possible. The present wording of new subsection (4A) makes that clear. However, in the few cases where consideration of the award of damages might have a prejudicial effect, the civil court could, in such circumstances, exercise its power to stay the proceedings until such time as the risk of prejudice to the criminal proceedings had passed. As it currently stands, the Government could not therefore agree to Amendment No. 20. I hope that the noble Lord will consider withdrawing it.

I am, however, happy to consider the points made in this and the earlier debate, look at the two amendments together and see if we can better perfect the situation so that there are no apparent contradictions in the way in which the legislation seeks to work.

Lord Cope of Berkeley

I accept entirely that the Minister and the Government are trying to seek the right balance. We are all trying to seek the right balance in this matter. However, I am still not in the least clear what is special about damages. The Minister said that he thought it highly unlikely—not impossible—that damages could prejudice a case or an investigation. If the possibility exists, we should not rule it out. The noble Lord did not say that it is certain that damages could not prejudice a case. He just said that it is highly unlikely. That is probably right. But he also pointed out that, with regard to the matters to which we shall come a little later, the court has the right to stay proceedings. I fully understand that. However, that does not affect the immediate right to have a remedy such as damages, or for that matter another remedy, which might or might not prejudice the ongoing investigation and proceedings. The fact that there is a stay is a separate matter which is valuable and important and provides some of the balance that is required by otherwise preventing or limiting the remedy that there might be.

Lord Goldsmith

If the Act works as the Bill intends, does the noble Lord agree that in a case where criminal proceedings are taking place, there will be a stay of those proceedings until the criminal proceedings have come to an end? At that stage, the proceedings would revive. If the applicant cannot get damages in the proceedings, there will be nothing the applicant can get at all. Does the noble Lord agree that at that stage the only prejudice could be in relation to subsequent or other proceedings where an injunction might give rise to prejudice but an award in the instant case would not?

Lord Cope of Berkeley

I am not sure that I follow all the ramifications of what the noble Lord said. In the first place, I am concerned not only about proceedings but also about investigations and matters before the proceedings take place. In the second place, I realise that quite often the stay in the civil proceedings is what will prevent the prejudice taking place in the criminal proceedings. But I do not see that anything in the Bill, if it were amended in accordance with my amendment or, for that matter, if it were unamended, would prevent damages or any other remedy being awarded when the civil proceedings restart after the criminal proceedings have been concluded, whichever way that turns out.

4.15 p.m.

Lord Lester of Herne Hill

Perhaps I may help the noble Lord by suggesting what would happen. Let us suppose that there is a whole series of multiple complaints by black alleged victims alleging racial discrimination and that criminal proceedings against them and against the police are really complicated, which is not unheard of. One might then need to be able to grant effective remedies and at the same time preserve a fair trial. Is not the noble Lord, Lord Goldsmith, right that it is important to have the prophylactic protective order under new subsection (4D), which is there to ensure that one can hold up the civil proceedings until after the criminal proceedings have occurred in a particular case but then be able to award the victim in that case an effective remedy, whether by way of damages or a finding, thereafter? Is there not otherwise a danger in such a multiple case that someone who is wholly innocent and a victim of race discrimination simply will not receive an effective civil remedy?

Lord Cope of Berkeley

He would receive his remedy, whether by damages or otherwise, when the civil case proceeded following the stay.

Lord Lester of Herne Hill

I have not made that point clear. There will then be other investigations and other proceedings. They may be wholly separate. With the very loose test here, the danger is that fettering the judge's discretion in the way that the noble Lord's amendment would do would mean that there was no remedy at all.

Lord Cope of Berkeley

I now understand. The point that the noble Lord was seeking to make was with regard to multiple proceedings affecting different people. I do not see that that alters the considerations as to whether damages are special enough to be given a special position under new subsection (4A) by comparison with other remedies. It is just as important that someone in the unconnected case which has been completed should be able to get any kind of remedy—not only damages but any kind of remedy which might otherwise have been available—assuming that it will not prejudice some of those in the multiple case.

The point of the amendment is to ask why damages are special. I am not trying to deny someone having a remedy. It is the stay which will delay the remedy. Certainly, we do not want to prejudice other cases or investigations or have other cases or investigations prejudiced. But I still do not see why damages are so special in this respect that they should be singled out as permissible in new subsection (4A) when nothing else is and when, by definition, if they are awarded, they will be prejudicial as it were.

The Minister does not seem inclined to speak again, but he said earlier that he would consider the matter further. In view of that, I do not think that noble Lords would wish to make a final decision, even on Amendment No. 20, which deals with the lesser of the two points involved. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lester of Herne Hill moved Amendment No. 21: Page 6, leave out lines 43 to 48.

The noble Lord said: This is a continuing dialogue on another version of the same problem. New Section 57(4D) states: Where the decision to institute criminal proceedings has been made or the criminal proceedings have been instituted, the court shall grant a stay or [in Scotland] list of the proceedings … unless it is satisfied that the continuance of those proceedings would not prejudice any criminal investigation and would be unlikely to affect any issue which might arise in the criminal proceedings". One has there a very broad prophylactic power, where criminal proceedings have been commenced, for the court to be able to grant that protective order. However, new subsection (4E) at the moment deals with the opposite—where no decision to institute criminal proceedings has been made. It states that, the court shall not grant a stay … unless it is satisfied that the continuance of those proceedings would be contrary to the public interest or might prejudice any criminal investigation, the decision about instituting criminal proceedings or any subsequent criminal proceedings".

I am not aware that I have ever seen anything quite like that in any other statute. I do not understand why the provision is necessary. This is exactly the kind of situation where common law discretionary powers in the courts could deal with some unforeseen problem. The danger of the provision as it stands is that it deals with cases where criminal proceedings are not instituted. Therefore, it deals with cases where new subsection (4D) is not necessary. We do not understand why new subsection (4E) is then included. It seems to us that new subsections (4A) and (4B) between them enable the courts to make quite sure that any remedy granted will not prejudice a prosecution. In other words, they give adequate powers to secure a fair balance between the rights of the accused in criminal proceedings and the rights of the victims in civil proceedings. This is therefore a probing amendment to try to understand why the Government think that what seems like a fairly extraordinary provision is necessary. I beg to move.

Lord Goldsmith

I do not know the answer to the question posed by the noble Lord. I look forward to hearing it myself. One of the difficulties may be that the new subsection (4D) contains an important power. I believe that noble Lords agree with that. Perhaps one needs to spell out why it is important. The potential prejudice to criminal investigation may be, for example, that people who are defendants in such criminal proceedings find that in civil proceedings they are required to undermine or prejudice their defence by giving evidence or giving explanations. There are all kinds of examples of that. I do not understand there to be any doubt that the new subsection (4D) is an important prophylactic power, as the noble Lord has said.

Some noble Lords may have been concerned that in the absence of something along the lines of the new subsection (4E), the court may take the view that it now has power to stay in circumstances which do not fall within (4D). I have much sympathy with the point made by the noble Lord, that the common law would normally provide such a power. However, I understand the concern, where specific powers are given in one circumstance, that it may be thought that, unless the position is spelt out that the court has discretion in the other circumstances, it may believe that it does not. That is the only suggestion that I can offer on this matter. If that is why it is there, in substance it may be a good thing to include it.

Lord Cope of Berkeley

There is a sense in which these two new subsections—(4D) and (4E)—are in the wrong order. The situation in which there is no decision to institute criminal proceedings for the time being is likely to arise before criminal proceedings are instituted as opposed to afterwards. I do not argue that the drafting should be altered in that respect.

I believe that there is the difficulty of possible prejudice to continuing investigation before a decision to prosecute has been taken one way or the other. Therefore, in law there has to be something like new subsection (4E). As to whether that needs to be specified in the Bill, or whether it is covered by common law is a matter upon which I do not feel qualified to pronounce. Such discussions as I have had on the point suggest that it is desirable that it should be in the Bill. I leave that to those who know more about it than I do.

The important point is that no prosecutor, the police or other investigator should get into the position—which they may if this amendment were carried and nothing else happened—of being pushed into taking a decision to institute proceedings by a pending civil action so as to seek the advantage of new subsection (4D) and a stay in those proceedings if (4E) or some common law substitute were not available.

Lord Bassam of Brighton

I believe that my explanation will be helpful. The presumption in subsection (4E) in Clause 4(1) of the Bill, is that proceedings will not be stayed where no decision has been made to institute criminal proceedings, unless the court is satisfied that to continue the civil proceedings would be contrary to public interest or might prejudice any criminal investigation, the decision about instituting criminal proceedings or any subsequent criminal proceedings. That will place a heavy burden on an investigator or prosecutor seeking a stay. They will have to be in a position to satisfy the court on the likelihood of prejudice to criminal investigations or proceedings before they could secure a stay of a claim under the Act.

It is necessary to have this power available so that when there is justification, the court can hear arguments to allow it to decide whether a stay is appropriate. Of course, a stay does not remove the availability of a remedy. Proceedings, which have been stayed, can be resumed once the grounds for the stay are no longer present. It may be argued that the court could grant a stay without this provision. That is correct, but without the test in new subsection (4E) of the Bill, the courts may apply a lesser test—that is the critical issue—when deciding to stay a claim under the Act which would not be beneficial to claimants.

I hope, with that explanation, that noble Lords will feel able to withdraw their amendment.

Lord Lester of Herne Hill

Before the Minister sits down, perhaps he can help me to decide what to do. He said that there is a heavy presumption in favour of the alleged victim of race discrimination. If he looks at new subsection (4D) and compares it with new subsection (4E) he will see that in new subsection (4D) the test is that the circumstances "would not prejudice" any criminal investigation. Looking at new subsection (4E) one sees a looser test: "might prejudice". The test is not "would prejudice", but "might prejudice". In addition, there are the words, would be contrary to the public interest or might prejudice". Given that new subsection (4E) is an obstacle to the right of effective access of an alleged victim of race discrimination to justice—in other words, it operates to debar an alleged victim of race discrimination by, let us say, the Police Service—I do not understand why what seems to be a stricter test against the alleged victim is inserted in (4E) than in new subsection (4D). What is meant by, contrary to the public interest"? That is an additional test—in addition to the "might prejudice" test rather than the "would prejudice" test. Why does it say "might prejudice" rather than "would prejudice" if the Government's intention is that this should be a strict test in favour of the victim rather than something that may violate Article 6 of the convention on human rights read with Article 14, the right of effective access to justice?

Lord Bassam of Brighton

I can see why the noble Lord may be concerned. He is helpfully drawing attention to the different quality of tests that may apply in each of the subsections. I am happy to reflect further on the way in which those tests may operate, on their interrelationship and on how they may work. If the noble Lord is happy to withdraw his amendment today, I am happy to agree to look further at the wording so that there is consistency of application in this area where there may be good cause to have that kind of consistency.

Lord Lester of Herne Hill

I am happy to withdraw the amendment in the hope that the Home Office will think carefully, not only about the debate, but also about Articles 6 and 14 of the convention on human rights on the right of effective access to justice.

Lord Cope of Berkeley

Before the noble Lord actually withdraws the amendment, he should give some thought to the question of which is the tougher test in the circumstances. In the subsection (4E) case, where the criminal proceedings have not been started—indeed they have not even been decided upon and the investigation is continuing—it would be extremely difficult to prove that a civil action would definitely be prejudicial. Inevitably, it is a little more unlikely. That is why the words "might prejudice" are in there, whereas the test in subsection (4D), which is expressed the other way around, says "would not prejudice".

Lord Lester of Herne Hill

I shall not prolong this matter, but perhaps I can make my concern clear. The starting point is the common law right and the convention right of effective access to justice for the remedy for unlawful racial discrimination. That is the starting point. That has to be balanced against the right of the accused to a fair trial in criminal proceedings. New subsection (4E) deals with a case where there are no criminal proceedings.

Lord Goldsmith

Would my learned friend—sorry, that is my day job—would the noble Lord consider that new subsection(4E) does not impose an obligation on the court to stay where there are those tests? It is a prohibition on the court from staying, except where that test is satisfied. Therefore, a court would still have a discretion. The noble Lord may also take into account that in considering that discretion the court would be likely to balance considerations. One aspect would be how long the stay would be before the criminal investigation had been concluded, and balance that against the hardship to the victim of having to wait for his remedy. I offer those suggestions as the noble Lord is considering this amendment and they may assist in understanding why the word "might" is there.

Lord Lester of Herne Hill

Perhaps I may complete my point. The problem is that we cannot oust the jurisdiction of the court or deprive a person of effective access to a remedy under the human rights convention except where necessary; that is, not where it might be contrary to public interest or might prejudice a criminal investigation, but where it is necessary and proportionate to protect a legitimate stated aim.

My concern is that that confers a power on the courts to exercise their discretion in a loose way. Although the Human Rights Act may come to the rescue, it ought not to be left to the Human Rights Act; we should get it right in this Bill. We should not write on the face of the Bill something which gives too wide a power to prevent the victims of race discrimination having effective access to justice. I have made my points, supplemented by the points made by other noble Lords. The Minister indicated that he will reflect upon this, as I am sure we all will. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.30 p.m.

Lord Lester of Herne Hill moved Amendment No. 22: Page 7, line I, leave out subsection (2).

The noble Lord said: Amendment No. 22 is part of the continuing problem and deals with the questionnaire procedure which, if I may say so without being self-regarding, was my invention in the 1976 Bill. It is a useful procedure which allows potential victims of discrimination to question someone they feel has been discriminating against them before deciding whether or not to launch proceedings. If the person being questioned refuses to answer or answers in a tricky way when the matter comes to the county court or employment tribunal, they are able to exercise a wide discretion in deciding, as a matter of evidence, what to make of the way in which the respondent has or has not replied to the questionnaire. It is similar to what lawyers call a "letter before action" but is of a statutory and formal kind.

Amendment No. 22 seeks to remove the proposed special right of public authorities—nobody else—as respondents in claims in new Section 19B to apply to the court to prevent any inference from a failure to reply to the questions in the statutory questionnaire, or from any particular reply where such reply would prejudice criminal proceedings or reveal the reason why a prosecution was not brought forward.

We entirely accept that there is a need to prevent discrimination cases turning into a civil version of a criminal trial. That is common ground. But there appears to us to be no need for this provision because Section 65(2) of the 1976 Act already says that a court or tribunal can draw inferences only if the respondent, deliberately, and without reasonable excuse", failed to reply in an adequate manner. The fear that a reply would prejudice criminal proceedings or turn a discrimination ca se into a guilt-determining exercise would surely qualify before any court as a reasonable excuse for failing to reply. This provision is therefore unnecessary because it is already adequately dealt with in the 1976 Act. I beg to move.

Baroness Whitaker

Can my noble friend the Minister tell the Committee how the Bill will implement the relevant undertaking of my right honourable friend the Home Secretary contained in his letter of July to the CRE—it was copied to me as the then vice-chairman of the Camden Race Equality Council so I should perhaps declare an interest—when he wrote, We accept that there should be a duty on courts and tribunals to draw inferences from the failure of respondents to complete s.65 questionnaires and that there should be a time limit of 8 weeks". The point at issue is that the answers to the questionnaire giving details of the respondent's personnel procedures and practices, and so forth, are a crucial aid in proving discrimination. If an applicant is well represented, the legal representative can tease all this out, but it is often the case that the applicant is unrepresented. Without the evidence from the questionnaire it is difficult to flush out what we call "institutional racism". A refusal, therefore, to answer questions is important.

I hope that we shall see a duty on courts and tribunals to draw an inference from a refusal, particularly as my right honourable friend the Home Secretary said that this will be implemented. As far as I can see it belongs in this part of the Bill but, as will be evident, I am net a learned Lord and shall be happy to see it wherever it fits. Perhaps the Minister will give his attention to that for a later stage of the Bill.

Lord Goldsmith

The noble Lord, in moving this amendment, in a sense said that the reason for tabling the amendment is simply because the clause is unnecessary. It is relevant to consider, therefore, that there is no issue in relation to two aspects. First, I agree with the noble Lord that there is no issue on the importance of the questionnaire procedure and of the courts having an ability and, in appropriate circumstances, a duty to draw adverse inferences. As my noble friend Lady Whitaker said, sometimes that is the only way of proving discrimination and it is an important weapon. The second point not at issue is that the court would and should be able to take the view that an adverse inference should not be drawn because of the circumstances.

All that comes down quite simply to this. Section 65(2) of the Act to which the noble Lord, Lord Lester, referred says that the court will not draw such an inference where it appears that the respondent had a reasonable excuse for not answering the question. The clause makes it plain on the face of the Bill that it would be a reasonable excuse if a criminal investigation was under way. For my part, I feel that that should be a reasonable excuse if it would significantly prejudice that criminal investigation.

It is right, therefore, that the Bill should make it plain that there is that exception in those circumstances—limited to those circumstances—as a way, as the Minister said earlier, of making sure of a balance between protecting victims of crime, of seeing a criminal investigation properly pursued and the rights of those subject to discrimination being properly maintained.

Lord Cope of Berkeley

We have to be careful. First, I entirely agree that the questionnaire procedure is important. It needs to be preserved and continued in a valid way in the context of this Bill as it worked under the Act. The noble Lord, Lord Lester, explained that it was his invention in the first place and he is to be congratulated on the fact that it was an important element in making the existing Act effective.

We are also all agreed, as has come out already, that we do not want to prejudice either proceedings or-investigations of criminal offences. Clearly in some cases the answers to questionnaires could do that. What struck me was the difference between proposed new subsections (4A) and (4B). For example, the Crown Prosecution Service could, presumably, always say, "Well, we won't reveal the reasons behind a decision not to introduce criminal proceedings". Indeed, taken by itself, new subsection (4A) would be a complete let-out for the CPS from the whole effect of the Bill. It is only when it comes to the consideration of such an application by the court that questions of prejudice have to be considered.

I would have expected mention of the word "prejudice" to appear in subsection (4A) in that those who make the otherwise unsatisfactory reply, as it were, to the questionnaire would have to do their best to explain to the court why they thought it would prejudice proceedings. In some cases that would be obvious and those concerned would not need to "bang on" about it, but in others it may be a matter of doubt. We certainly do not want to give the CPS, or anyone else for that matter, a free run under this legislation.

I agree with the Government in their response to the comment made by the noble Lord, Lord Lester, that this provision is specifically directed at public authorities. Of course, it is not public authorities generally; it relates to those concerned with criminal investigation and prosecution. I believe that they should have a special position. However, whether that special position arises from the necessity to include such a clause or whether Section 65(2) of the Act can be relied upon is a different question. Either way, it places investigation and prosecution authorities in a different position.

I should also point out that the reason I do not think that the prosecuting and investigating authority should be left out of the matter is that this was absolutely central to the Lawrence case. The decisions that were made in the course of that investigation regarding whether or not to prosecute were absolutely crucial in the Macpherson report. Indeed, as we all know, a private prosecution was mounted at one point; so there can be no question of leaving such authorities out in these matters.

We should also bear in mind the point I made earlier that, in one sense, no criminal investigation is ever wholly closed. The possibility of it being re-opened and considered again can occur at more or less any point, even many years after the file has lain dormant or been put into the long-term pending filing system of the police. I give way to the noble Lord.

Lord Lester of Herne Hill

I am grateful to the noble Lord. Following his line of reasoning, I wonder whether the noble Lord will agree with me in the following example of a case of someone who has been the victim of race discrimination in this context. New Subsection (4B)(a) applies to a case where no decision to institute criminal proceedings has been made. The noble Lord will see that it is very wide in giving what the noble Lord, Lord Goldsmith, referred to as a proper reason within the statute. It refers to, any decision to institute criminal proceedings or any subsequent criminal proceedings and would not be contrary to the public interest". That is not just the criminal proceedings in relation to the alleged victim. We are dealing with a case where there has been no decision to institute criminal proceedings of any kind. Does the noble Lord agree that that, at any rate, seems to be far too wide a protection of the investigative and prosecutorial system and that it would entirely frustrate or negate the ability of a victim to obtain an effective remedy?

Lord Cope of Berkeley

The noble Lord has made a good point. In a sense, it brings us back to his earlier point about multiple investigations and proceedings. In particular, the inclusion of the word "any" is a difficulty in this respect.

However, when discussing an earlier amendment the noble Lord also questioned the meaning of the phrase, contrary to the public interest". I must admit that my first expectation was that this was a term of lawyers' art, which would be well documented in some books. Indeed, I made enquiries in that regard when considering the Bill but did not get a very clear answer as to what might be "the public interest". I think that it could be used extremely widely in some cases. The noble Lord has also made a good point in that respect.

4.45 p.m.

Lord Bassam of Brighton

I should, first, register my gratitude to all those Members of the Committee who have contributed to this short debate, which has been very illuminating. I am grateful for the comments made from all sides of the Chamber.

My noble friend Lady Whitaker is absolutely right to remind the Committee that the Government have agreed that there should be a duty on courts to draw adverse inferences from the failure of respondents to complete the Section 65 questionnaire. Indeed, that is one of the issues that the Government intend to consider and address in the equalities Bill that we promised in our equality statement on 30th November last. My noble friend gave us a very helpful and valuable reminder in that respect.

The Government accept that there is some force in the argument advanced by the noble Lord, Lord Lester, that it may be unnecessary to provide an opportunity for an early court decision on whether a refusal to respond to a questionnaire issued under Section 65 of the Act is reasonable where a public investigator or prosecutor believes that a reply may prejudice a criminal investigation or proceedings.

However, we feel that it is essential for claimants, investigators, prosecutors and the courts alike to make clear on the face of the Bill that a Section 65 questionnaire need not be completed where it might prejudice criminal proceedings or investigations. We believe that this is consistent with the theme running through Clause 4 of trying to strike a balance between the ability of an individual to seek redress through the civil courts, while ensuring that the commitment to reduce crime, and the fear of crime, to dispense justice fairly and effectively and to promote the rule of law is not undermined or weakened.

For that reason, I am able to tell the Committee that the Government are prepared to reconsider Clause 4(2). On that basis, I rather hope that the noble Lord, Lord Lester, will be content and feel able to withdraw his amendment.

Lord Avebury

Before the Minister sits down, I should remind him that this is the second time that he has been asked about the phrase, contrary to the public interest". Is it not possible for the noble Lord to give Members of the Committee some explanation of the meaning of the phrase in the two contexts that have been mentioned?

Lord Bassam of Brighton

It would perhaps be helpful to give some further thought to what is "in the public interest". I believe that it is in the public interest for us to get this piece of legislation right; that is what we seek to do. Indeed, that is the purpose of this debate and the important discussions that we have had. I think that we should rely on that. We will take this matter away and consider it further.

Lord Lester of Herne Hill

It is very good news that there will he an equality Bill and that the point about drawing inferences raised by the noble Baroness, Lady Whitaker, will be addressed in it. It is not, of course, worth debating that issue today. It is also very good news that the Government have agreed to reconsider this matter because of the need to ensure effective access to justice in cases of this gravity. Therefore, on that basis, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clauses 5 to 7 agreed to.

[Amendment No. 23 had been withdrawn from the Marshalled List.]

Lord Lester of Herne Hill moved Amendment No. 24: Before Clause 8, insert the following new clause—

GENERAL DUTY ON PUBLIC AUTHORITIES (" . For section 71 of the Race Relations Act 1976 there shall be substituted—

"General duty on public authorities. 71.—(1) Without prejudice to its obligation to comply with any other provision of this Act, a public authority to which this section applies shall have due regard to the need—

  1. (a) to eliminate unlawful racial discrimination;
  2. (b) to promote equality of opportunity between persons of different colour, race, nationality or ethnic or national origins; and
  3. (c) to promote good relations between persons of different racial groups.
(2) The compliancy of each public authority to which this section applies with the requirements of this section shall be subject to inspection and appraisal in accordance with regulations to he made by the Secretary of State after consultation with the Commission for Racial Equality. (3) This section applies to every body or other person specified in Schedule A1 or of a description falling within that Schedule."").

The noble Lord said: I believe that this amendment is the most important amendment that we are considering. It is as important as the amendment that we considered on Tuesday. It seeks to impose a positive and enforceable duty, to eliminate unlawful racial discrimination … promote equality of opportunity between persons of different colour, race, nationality or ethnic or national origins; and to promote good relations between … different racial groups". If I may say so, in an equality Bill one would expect this to apply not only to race but also to other forms of forbidden discrimination, such as gender discrimination. The all-important enforcement mechanism is for now to be determined under this amendment by the Secretary of State after consultation with the Commission for Racial Equality. I shall explain a little later why we have left the provision in that form at the moment.

The significance of a positive duty is that it would require public authorities to act to prevent racism, which is preferable to using the law only to seek redress after discrimination has taken place. Only a positive duty can prevent delay and prevarication by public bodies in confronting and eradicating institutional racism which the Stephen Lawrence inquiry identified as all too common in some of our public authorities.

A duty to promote racial equality is not a novel concept in our race relations legislation. Section 71 of the 1976 Act—this was very much a child of the late Alex Lyon MP as Minister of State, as I recall—imposes a similar duty on local authorities, but, without any effective means of enforcement, this has had a limited and uneven impact. The purpose of our amendment is to create a clearer, more enforceable and more direct positive duty covering all public authorities and not just local authorities.

As the Minister has indicated, a few days before the publication of this Bill the Government published their equality statement, acknowledging that an obligation on public bodies to promote racial equality needs the force of statute. We very much welcome that. They have undertaken to legislate for this, as soon as parliamentary time permits". Why cannot this be done now in this Bill in relation to race discrimination? That would then serve as a model and as an experiment when parliamentary time is found for the wider equality Bill. There is no need for delay; the Bill constitutes a perfect opportunity to introduce such a duty.

The Government have made progress in requiring public bodies to take action to eliminate inequality. The legislation establishing the Greater London Authority, the Welsh Assembly and the Metropolitan Police Authority all provide for a duty to promote racial equality. My noble friend Lord Dholakia played a particularly prominent part in relation to the Greater London Authority provision; namely, Section 404. But the problem with these statutory duties is that they remain essentially unenforceable. Any duty must be backed with a strong enforcement mechanism developed in consultation with the Commission for Racial Equality, as our amendment requires.

There is one example of an elaborate enforcement mechanism; namely, the detailed procedure in Schedule 9 of the Northern Ireland Act 1998 which requires designated public authorities to adopt schemes for the regular appraisal of the extent to which they are abiding by their duty to promote equality. The Government were happy to introduce such a scheme for Northern Ireland; why therefore should not a similar enforcement mechanism be introduced here?

It is intended that the Secretary of State will specify measures that public authorities will need to take and will give additional powers to the Commission for Racial Equality to require evidence of compliance and to take enforcement action where there is evidence of non-compliance. The central purpose is to create an effective but not excessively bureaucratic system of monitoring and enforcement modelled, for example, on the Northern Ireland scheme.

The CRE has repeatedly expressed its disappointment that the Government have failed to require all public bodies to use their purchasing power to promote equality by building equality requirements into their external contracts, service level agreements and grants. I recall what is often forgotten; namely, the White Paper of the noble Lord, Lord Jenkins of Hillhead, entitled Racial Discrimination of September 1975. This is what the second Wilson government committed themselves to. Paragraph 19 of the paper states: Since 1969 all Government contracts have contained a standard clause requiring contractors in the United Kingdom to conform to the provisions of the Race Relations Act 1968 relating to discrimination in employment and to take all reasonable steps to ensure that their employees and sub-contractors do the same". Paragraph 20 states: it would be the intention of the Government when new legislation about racial discrimination is enacted— that was the 1976 Act— to require a similar undertaking to comply with its provisions as a standard condition of Government contracts. The Government has considered whether its duty to take an active role to eliminate discrimination requires something additional. It would be an unacceptable burden to require all contractors to supply as a matter of form full particulars of their employment policies; but the Government cannot passively assume that a formal condition in a contract is all that is required. It is therefore intended that it should be a standard condition of Government contracts that the contractor will provide on request to the Department of Employment such information about its employment policies and practices as the Department may reasonably require". That never happened. After the noble Lord, Lord Jenkins of Hillhead, left to become president of the EEC Commission, the commitment disappeared. Therefore, although that is the provision that the White Paper promised, it never came into being. Oddly enough, it was introduced across the Irish Sea when in 1989 the government of the noble Baroness, Lady Thatcher—of which the noble Lord, Lord Cope of Berkeley, was a distinguished member—introduced some extremely strong and effective monitoring in the Fair Employment (Northern Ireland) Act 1989. However, we still do not have fulfilment of the commitment in the 1975 White Paper on race discrimination. We still have nothing that is equivalent to the situation in Northern Ireland.

The Cabinet Office has published strong guidelines providing that all government departments must implement policy appraisal in order to assess the impact of their measures. In those circumstances we see no good reason why, now that we have the Bill before the Chamber, an opportunity should not be taken to introduce the positive duty. We have left out of this amendment the schedule that is in the Northern Ireland Act. The reason we have left it out is simply because we do not want to tie the Government's hands, or the hands of the CRE, in negotiating a sensible method of monitoring which is effective without being too onerous. We could have written in the Northern Ireland provisions literally verbatim.

The reason we refer to the positive duty applying to public authorities designated in a schedule—this goes back to a point that we raised at the very beginning in Committee—is because this is a different situation from the one we were considering previously as regards the duty on public authorities not to discriminate unlawfully. When one is dealing with a positive duty, it is vital that there be a schedule with a list of public authorities to which the positive duty can be applied in a well targeted and phased way so that we do not impose unnecessary handicaps on very small bodies, for example, and become unnecessarily legalistic or bureaucratic.

I hope that the Committee will consider that the amendment is well designed and is not over-intrusive. It does not seek to legislate for everything. It leaves a discretion with the Government, in consultation with the CRE, to work out an effective system of monitoring. It is much more modest than anything which occurred under the Conservative government or under the Labour government with regard to Northern Ireland. We very much hope that the Government will take the opportunity provided by this Bill to begin the experiment of having a proper, enforceable positive duty in Great Britain, as exists in Northern Ireland. I beg to move.

5 p.m.

Lord Cope of Berkeley

The noble Lord, Lord Lester, was right when he said that one of the most important things to consider when putting a statutory duty on public authorities to take some action or to have regard to some matters is the way in which it will be enforced and appraised. The weakness of his amendment is that it leaves that issue extremely vague. When I say "weakness", I mean weakness as far as Parliament is concerned. We are given no indication in the amendment—nor, unless I missed it, were we given a great deal of indication in the noble Lord's speech—as to how this inspection and appraisal might work.

Lord Lester of Herne Hill

Perhaps I can help. It is all in a schedule to the Northern Ireland Act 1998. I have not spelled it out on the face of the Bill but, of course, that can be easily looked up and provided. The model is in the Northern Ireland Act which Parliament passed in 1998. As I said, I can be criticised for being too flexible, but that is where one finds the best model nowadays.

Lord Cope of Berkeley

When I said "weakness", I was thinking of a weakness as far as concerns Parliament and the way it will work. It is, of course, a strength—governments like legislation that is vague enough to allow them to put it into action the best way they can. I know that from being on the other side of tables of this kind.

The noble Lord said that the Northern Ireland legislation is a model. I have some knowledge of that from the time when I was a Minister in Northern Ireland in 1989, at a time when all this was coming into being. The situation in Northern Ireland is now different in a number of respects. First, it was certainly different in 1989 in that there was on-going, extremely violent terrorism and many deaths at that point—3,000 in total in the past few decades. There was a tremendous background of violence which required extremely strong measures to try to reassure the public. It also meant that extremely strong measures were much more acceptable to people as a matter of fact.

Secondly, the discrimination causing the difficulty in Northern Ireland was of a simpler character. There were two basic sides, as it were—two parts of the population in Northern Ireland to consider—as opposed to the large number of people who, potentially, may be discriminated against in the context of this legislation—not only from the racial point of view in the sense of ethnic minorities, but also gypsies and so on, as we discussed the other day. So it is a much more complex situation.

I appreciate that the Northern Ireland example may be the model that the noble Lord, Lord Lester, has in mind, but there is nothing in the amendment to say so. If we were to pass the amendment as it is, it would be entirely for the Government to decide—with very little say from Parliament's point of view—how the enforcement, the appraisal and the inspection should be managed. I should prefer an amendment which would leave Parliament in greater control of what might happen.

In a sense, that is a quibble about the drafting of the amendment. As far as concerns its main point, the Government have already accepted that there should be a general duty of this character, presumably enforced in some way that we have yet to hear about in any detail. I am not conscious that we have heard in outline how the Government intend that that should happen. We have this wonderful expression of "when parliamentary time is available", which one has heard before. Indeed, one has used it before on other occasions.

The Home Office appears to have taken up an enormous slice of parliamentary time this year without succeeding in getting round to this particular piece of legislation. It obviously has a great deal of other priorities ahead of this at the moment. In those circumstances, the opportunity to insert the duty in this Bill—and to avoid the necessity of bullying the noble Lord the Captain of the Honourable Corps of the Gentlemen-al-Arms, and his colleagues in the Commons, into finding yet more time for the Home Office—is one which most departments, if they are keen on something, would be happy to accept. This gives the impression that perhaps the Government are not so keen on the idea, or at least that they want to kick it into the long grass at some point. I leave the Minister to explain what is meant by the different phrases that have been used.

Lord Patel

I support the amendment moved by the noble Lord, Lord Lester of Herne Hill. I repeat that I am not a lawyer and that I cannot speak on the finer legal points, nor can I pretend to fully understand them. But I know that the noble Lord, Lord Lester of Herne Hill, who is an expert, will keep us right.

I speak in support of the new clause, which gives Secretaries of State the duty of inspection and appraisal to ensure that the public authorities actively promote racial equality policies. It is not good enough for authorities to prove that they have a written policy; active steps must be taken to eliminate racial discrimination, direct and indirect, and to promote equal opportunities.

My experience is of the National Health Service. Everyone in the health service should be personally committed to a culture in which prejudice of any kind is unacceptable. I support the Department of Health in its efforts to tackle racism and I support its pledge of zero tolerance of discrimination, whether caused by patients or by staff.

I also welcome the circular sent to managers across the NHS in March 1999 which stated that, employees must be proactive and positive in tackling racism". But I question whether managers have taken heed of this directive. It is vital that NHS trusts, health authorities and primary care trusts, when they are established, have an equal opportunities policy. This new clause will ensure that such NHS bodies are appraised so that their policies are promoted actively.

An important issue for the health service is its recruitment and selection procedures, to which I referred at Second Reading. Equal opportunities practices for doctors in employment and within general practice ensure justice for all applicants for posts, enable selection of the best available candidates and deliver services to the community by a workforce which reflects its diversity. Organisations reflecting diversity in their staff can develop more fully their businesses and social potential, which will lead to more cost effective use of resources.

Some doctors—such as women, certain ethnic groups, overseas doctors and disabled doctors—often fail to gain the post for which they are qualified. The British Medical Association identifies that one of the main causes of under-representation of these groups can be attributed to lack of equal opportunity practices in recruitment and selection procedures. There is a serious anomaly in the race relations legislation, an issue I raised at Second Reading. I k now that the Minister replied that this would be covered in employment legislation.

I had intended to move an amendment because the Race Relations Act does not provide protection to a large number of GPs in partnerships, or to doctors seeking to become partners in general practices. Those in partnerships of five or fewer are outside the protection of the Act. There are 5,000 practices with two to five partners, involving 17,500 doctors. However, I have not been able to do so as such an amendment would not fall within the Long Title of the Bill. However, I am in favour of a positive legal duty on public authorities to act to prevent discrimination. That may prove to be a partial remedy for what I have been unable to do through the Public Bill Office.

I refer again to the Government equality statement mentioned by the noble Lord, Lord Lester of Herne Hill, and I support what he had to say. A statutory, enforceable obligation to promote racial equality and to eliminate discrimination is required to prevent prevarication and delay by public bodies, including the NHS, in confronting, and taking action to eradicate, institutional racism. That is far preferable to using the law to seek redress only after discrimination has taken place. I support the new clause since at least it will provide for monitoring of compliance in public authorities in promoting equality of opportunity.

5.15 p.m.

Lord Dholakia

I, too, support the amendment tabled in the name of my noble friend Lord Lester and those of the noble Baronesses, Lady Prashar and Lady Howells, and the noble Lord, Lord Patel. I was delighted to hear of the examples given by the noble Lord, Lord Patel, in his contribution to the debate.

We should bear in mind that what we are proposing is in effect already on the statute book as regards Section 71 and how it affects public authorities. However, what we are proposing here is in reality an amendment to the Race Relations Act that will include public authorities in that Act. I shall argue and give examples of why Section 71 has not been effective. For that reason it is right and proper that, although the provisions of Section 71 apply to public authorities, there needs to be a more fundamental approach in terms of compliance provision. It is vital, therefore, that we support this amendment.

During the passage of the Greater London Authority Bill I was fortunate enough to be able to impress upon the Minister the need for such a provision to be included in that legislation. I recall going to see the noble Lord, Lord Bassam, and I do not believe, in the early stages, that he was happy about it. However, over a period of time the strength of our argument was such that not only did I receive the support of his party but also that of the Conservative Party in promoting the measure. Should the Minister give me a nod and a wink that he is prepared to listen again, I shall shut up and sit down and save much effort in putting forward my arguments once more.

Many of the arguments have already been put to the Committee. My noble friend Lord Lester spoke of the position in Northern Ireland. However, we should not forget that provisions are already in place as regards the Scottish Parliament and now for the Greater London Authority and for the Metropolitan Police. We are discussing substantial powers. Earlier I mentioned the Government's own recently published statement on equality which acknowledged an obligation upon public authorities to promote equality needs. Therefore, as my noble friend Lord Lester said, this amendment should act as a model for other equality provisions in further legislation that may be brought forward.

In our view, the enactment of a strong, clear, enforceable legal duty ought not to be delayed. Only by imposing such a duty upon public bodies will the Government give tangible reality and consistency to their commitment to racial equality. Obviously, that was reflected in the Stephen Lawrence inquiry. A statutory duty of the obligation to promote racial equality and to eliminate racial discrimination is required to prevent prevarication and delay by public bodies in confronting and taking action to eradicate institutional racism.

For a number of years I worked for the Commission for Racial Equality. It sees no real evidence that the present non-statutory guidelines, such as those in place for civil servants in relation to policy appraisal for equality of treatment, have been effective in changing the factors that influence government policies. Similarly, the obligations on local and police authorities that have been in place since 1976 under Section 71 of the Act have had a very uneven and limited impact. That is why it is significant that we need a positive legal duty to oblige public authorities to act to prevent discrimination.

I have mentioned Section 71, which places duties on all local authorities. However, when one examines those duties, one finds that the performance indicators on racial equality in local authorities' annual reports to the Audit Commission show clearly that, despite Section 71, areas of local government employment practices and service delivery remain wholly outside equal opportunity programmes. No longer can we depend upon the power of the commission, because a close examination shows that there is none. The commission has become a laughing stock. Matters are simply left to local authorities. If an authority is well intentioned it will put in place good practices, but if it is not, then nothing can be done about it.

Furthermore, one can examine the confirmed high level of complaints to industrial tribunals where 15 per cent of all cases heard before those tribunals come from local authorities. That reveals how ineffective are the local authorities themselves in eradicating discrimination. We shall miss a golden opportunity, which has been pointed out not only by Macpherson but also by Scarman, if we continue to keep faith with the section in the Race Relations Act. It has hardly worked at all.

The noble Lord, Lord Cope of Berkeley, put the argument to the Committee that we must define in precise terms what we are approving here. It is right and proper that, if the Government decide to take these proposals on board at Report stage, then it will be possible to implement them by regulation. It is also perfectly feasible to indicate those public authorities that should be included under such regulations. These proposals are not out of place. All that is required is the will of the Government.

Many noble Lords who have contributed to the debate on this amendment represent, to a large extent, the interests of ethnic minority communities. They have stated in clear terms again and again that it is about time that the Government looked at this provision. They have the experience and the examples of what is happening in their areas. I hope that the Government will take account of the body of opinion that exists in the Chamber. If they do so, they will be delivering a great public service in relation to other legislation and how equality issues may affect it. Occasionally, such matters are overlooked. For that reason, it is not good enough to wait for some later date or until after the next general election. Harold Wilson said that a week is a long time in politics and no one can anticipate what will happen at the next election. I hope that the Minister, who was wise enough to agree with the amendment I tabled to the GLA Bill, will now say, "Yes, this is the right approach" and will take it on board.

Lord Avebury

My Lords, in the debate in this House yesterday a noble Lord remarked that, if a week is a long time in politics, a decade is a short time in diplomacy. I would say that, when we look back to the 1976 Act, 20 years is an even shorter time in the field of race relations. As my noble friend said, I hope that we shall now seize this opportunity to impose a duty on public authorities which has been so widely demanded by ethnic minorities throughout the country. If we do riot take up the opportunity we have today then I fear that we shall have to wait for another 20 years. As my noble friend Lord Lester pointed out, in 1976 we missed our chance of putting into place something along these lines.

I also wish to take up what the noble Lord, Lord Cope, said about my noble friend omitting to include a schedule in this amendment, which is equivalent to Schedule 9 of the Northern Ireland Act. I am sure that my noble friend would have done that if there had been time to consult the Home Office and the Commission for Racial Equality and arrived at a suitable form of words which would be the equivalent of that schedule.

I believe that my noble friend Lord Dholakia hinted at a solution to the problem. If the Commission for Racial Equality already has firm ideas about how that should be translated in terms relevant to England that would be satisfactory. I do not accept entirely what my noble friend said as regards Schedule 9 reading across exactly to English conditions. There may have to be some minor variations. But if the conditions are of relatively small character and consultation with the Commission for Racial Equality could take place between now and Report stage, then we would not have to give the wide discretion to the Government which the noble Lord, Lord Cope, has criticised. I agree with him that it would be much better if we can put this matter on the face of the Bill, but if we do not have the agreement of the Government in principle to the amendment then we shall be wasting our time in entering into consultations.

I wish to take this opportunity to ask the noble Lord, Lord Bassam, another question which arises out of this brief discussion, particularly its relationship to Northern Ireland legislation. As the noble Lord will recall, under Section 75 of the Northern Ireland Act, United Kingdom departments which operate i a Northern Ireland had to he designated under Section 75(3). As I believe is usual in these cases the procedure is that the Secretary of State for Northern Ireland had to write to all the United Kingdom departments to ask whether they had any objection to being designated. When I last made inquiries about this matter I was told that every single United Kingdom department had responded favourably to the request except the Home Office. That was at about the time we rose for the Christmas Recess and Section 75 of the Act was due to come into operation on 1st January. Can the noble Lord say whether the Home Office replied to the Secretary of State for Northern Ireland before the deadline and was it willing to be designated under Section 75 of the Northern Ireland Act?

It is not a trivial point. One would hope that there is a certain degree of conformity in legislation on both sides of the Irish Channel. If the Home Office is to be subject to Northern Ireland legislation it would surely be highly incongruous if it did not have a similar obligation as regards the rest of the country. Otherwise one is saying that Northern Ireland is a separate land. It is treated in a very superior way as regards obligations placed on public authorities. I believe that the noble Lord, Lord Cope, will agree that paradoxically the scope of the legislation is far wider even though there are only the two communities. Northern Ireland legislation extends to gender, nationality and so forth, whereas we are talking about a more limited sub-set of provisions in Northern Ireland.

As I say, paradoxically, even though one has the major problem of religion between the two communities, Northern Ireland legislation extends through a wide spectrum of differences between different sections of the population. When we consider gender later on I hope that the same considerations will apply and that we shall place on public authorities the obligations contained in the Northern Ireland legislation which provide an extremely valuable model. If the noble Lord, Lord Bassam, can answer my question, I believe that it would help the Committee in its deliberations on this particular legislation.

Baroness Uddin

I had no intention of speaking in this debate because I have been absent for much of it. I therefore beg the Committee's indulgence to speak in support of this particular clause.

Unless we promote legislation imposed by statute on local authorities and public bodies, then we shall fail to respect the confidence of the community. It is not simply a matter of being 20 years too late as regards race relations legislation. So much has happened since the death of Stephen Lawrence. The community had such expectation not simply in the black and Asian sectors but across all sections of it. So much aspiration relies on this one Bill in finally laying to rest assumptions that we will tolerate racism under any statutory obligation and through the services that we provide. There has been a great deal of discussion about indirect discrimination. I have great concerns about that. I hope that we shall be able to address that fairly soon.

Leaving that matter to one side, as a long-standing councillor for Tower Hamlets I remind the noble Lord, Lord Lester, of the dreadful way in which the Liberal council used Section 71 to champion racist policies against the communities in that borough. I say that because of what the noble Lord, Lord Dholakia, said about the ineffectiveness of Section 71 over a very long period. I shall refrain from commenting any further on the record of the Tower Hamlets Liberals and their abuse of authority and power and the degradation of the Asian and Muslim community in that part of the borough.

I very much urge the Minister to accept this particular clause because, after all that has been done since this Government came to power and the aspirations which have been raised in the community across the country, I do not believe that we can afford to lose the confidence of the community and fail the aspirations of every single person who has supported the Stephen Lawrence report. We cannot possibly let those people down. I do not believe that it is a party political matter or that we can wait for the equal opportunities statement to be produced and treated as an afterthought. That is how it will appear. I urge my noble friend to accept this new clause and I am delighted to support it.

Lord Bassam of Brighton

It is always interesting and perhaps difficult for Ministers to disagree with something when they have every sympathy with the proposal put in front of them. The nature of our disagreement on this particular amendment is not as regards its principle, spirit, intent or direction but simply a matter of timing and content. It is for that reason we are unable to support the amendment which the Committee is discussing.

I have found the contributions to the debate very interesting, helpful and illuminating. I believe that all Members of the Committee who have spoken have made very important points which take our discussions forward. I was much impressed by what the noble Lord, Lord Lester, said in his opening remarks on this issue. He addressed it very practically, forcefully and laid out a very good case. We agree with it. As I have made clear in the past, it is the Government's intention to legislate to promote a positive duty in this field. There is no disagreement between us on that matter.

The noble Lord also gave us a very interesting history lesson on the development of this particular aspect of legislation. It was very thoughtful and helpful in reminding us about the position from which we started. In that context it is worth saying to the Committee that Labour, whether in local or national government, has always been at the forefront of these arguments. We have an excellent track record as regards this issue.

The Committee will be aware that my political background is local government in which I spent a long time—perhaps too long in the view of some colleagues. I was very proud to lead an authority which was at the forefront of these issues. Although race was perhaps not the biggest consideration in my local authority area, certainly it was an important concern. Issues of sex equality and race were very much part of the authority's forward thinking. In many respects I believe that local government has in its policymaking and thinking made out a clear case for introducing a positive duty. In a sense, in many areas national government has caught up with the best achievements of local government. I believe that local government should be congratulated on that. Positive promotion has spread not simply across local government but into a whole range of areas within the public service. I believe that over the years the public service has in general responded well in that respect.

The Government have made clear their position. It is not their intention to kick this issue into the long grass. We have made clear our intention to consult on how a duty to promote equal opportunities in relation not only to race but to sex and disability may work in practice. We are fully committed to the introduction of a legislative duty when that consultation has taken place and we have had the opportunity to take into account the views of all concerned when they have been properly sought. That opportunity for consultation is very important. We want to get it right and ensure that in this complex legal field we create that positive duty in the right framework.

5.30 p.m.

Lord Lester of Herne Hill

Can the Minister inform the Committee what consultation took place in Northern Ireland before the very extensive system in the Northern Ireland Act 1998 was imposed by Parliament?

Lord Bassam of Brighton

I am confident that the noble Lord is aware that there was not necessarily extensive consultation in Northern Ireland. But a very special set of circumstances applies to Northern Ireland and I believe that that must inform our debate this evening.

We want to achieve a society in which public bodies uphold the duty to promote equal opportunities so that it makes a practical, telling difference to the way that citizens live their lives. That must be right. For that to happen we need to explore how to set up workable arrangements to which public authorities can adhere and develop proposals for an effective and proportionate system of enforcement.

The noble Lord, Lord Cope, raised the whole question of enforcement. He pointed out that there might well be weaknesses in the amendment in that it rather side-stepped the issue of enforcement. Some may argue that precedents in Northern Ireland provide a good model. However, it is far from clear that it would be appropriate simply to transpose those arrangements lock, stock and barrel to Great Britain. For example, the scale of activity required to appraise and inspect all the public authorities, as the amendment requires, would be phenomenally resource intensive. We cannot afford to set up a bureaucratic, administrative nightmare. I say to those members of the Committee who, quite rightly, support the spirit of this amendment that we must focus further time and attention on the important issue of how a positive duty to promote is to be introduced, policed and made to work. We believe that workability is very much at the heart of our debate.

The Government are committed to introducing a duty on public bodies to promote equality of opportunity in the areas of race, sex and disability. We want to present our options and proposals for consultation later this year before we introduce legislation. At that point we shall be able to seek and positively encourage views from all quarters on what will be a wide-ranging duty to promote positively equal opportunities. We have not been slow to move forward in this Area. In the meantime, we shall continue to press ahead with administrative action, as we have been doing throughout the life of the Government. We have built on the mainstream guidelines issued to policymakers, making careful progress, but progress nevertheless, on the targets set for ethnic minority recruitment, retention and promotion. I am sure the Committee accepts that that has been an important aspect of the administrative work of the Government to take forward this whole area of policy.

I am reluctant to become too embroiled in the matter raised by the noble Lord, Lord Avebury, except to say that I am conscious that the Home Secretary replied to the question and that we must make progress in that field. The Home Office, as with all other departments, is very much on side in the context of Northern Ireland. I ask the Committee to consider very carefully what I have said. We all want to make progress and clearly there is a political consensus.

Lord Avebury

I did not really expect the Minister to give me an answer on the Floor of the House. Will the noble Lord write to me, and place a copy in the Library, saying whether the Home Office has signed up to Section 75(3) of the Northern Ireland Act? Can he do so before Report stage?

Lord Bassam of Brighton

I shall happily ensure that the noble Lord receives a reply to clarify the situation. There is a political consensus on this matter. But we need to work to give it practical effect by its introduction into legislation across the whole range of equality issues. For that reason we need a process of careful consultation. I shall carefully reflect on what has been said this evening. We shall continue to keep the matter very much at the forefront of our thinking. I hope the Committee accepts that the Government have not merely expressed good faith in this matter but have, since May 1997, made progress in policy and implementation in this field. I congratulate all those who have given effect to that progress, particularly those in the public service. On that basis, I ask the noble Lord to accept the Government's good faith in this matter and to withdraw the amendment.

Lord Lester of Herne Hill

Of course we accept the Government's good faith. What we do not accept is the Minister's dismal and deeply disappointing reply. We all agree on the political objective: in that sense there is a consensus. What deeply divides us is that we on these Benches believe that the means to give effect to that objective must be found now in this Bill and not at a future indeterminate date. We have the opportunity in the Bill to give the Government the authority to introduce a satisfactory scheme.

I have been criticised, perfectly fairly, by the noble Lord, Lord Cope of Berkeley, for not seeking to write into the Bill the kind of detail that appears in the Northern Ireland Act so that Parliament can examine it in detail. My reason for not doing so is my desire to preserve flexibility for the Home Office, other government departments and the Commission for Racial Equality to be able, with the authority of Parliament, to come up with a scheme sooner rather than later related to race discrimination and equality as an experiment or model which can be examined when there is an equality Bill either during the lifetime of this Parliament or, if necessary, at a later date. The Minister has given no coherent reason for the need to delay. As far as I am aware, there was no consultation about what happened in Northern Ireland.

I should like to address the question of the difference between Northern Ireland and Great Britain, which was referred to by the noble Lord, Lord Cope. I am sure the noble Lord did not mean to imply that the problems of race discrimination are any less serious in Britain than those of religious and race discrimination in Northern Ireland. I should like to share with him and the House a recollection pointing to the danger of any other point of view.

Some years ago, on behalf of a Home Secretary no longer alive, I was consulted by an extremely senior and now retired Home Office civil servant. He took me to lunch and said, "I should like to ask you what we should be doing about race equality and race relations". I was about to travel to Belfast in order to give advice there about human rights in Northern Ireland. With this senior official, I went through all the options, platitudes and obvious things that needed to be done, including the need for a positive duty. Each time I came to another proposal he said, "That is politically impossible". I asked "Why are all these proposals, including a positive duty, politically impossible?" He replied, "There is not sufficient political will". I said, "I am going to Northern Ireland this afternoon where there is plenty of political will because they have burnt the place down. The place is full of rioting and killing. Is the only way in which we shall get action in Britain for us to distribute boxes of matches to the ethnic minority to follow suit so that there is sufficient political will?" He sighed and said, "I cannot see how I can get my political masters"—they were Conservative, not Labour—"to have sufficient political will in Britain because in Britain race relations are still relatively peaceful".

Lord Bassam of Brighton

I have listened with interest to the point the noble Lord makes. In a sense—I invite him to agree—he makes the case for the argument that I put. It is accepted that there is a political consensus here. We need to get this right. It is right that we find the time to have important consultations on this issue not least because we are not talking just about a positive duty to promote race equality but a positive duty to promote a number of other equality issues. For that reason we need to get it right. We have the political consensus. Now let us get right the interrelations between that positive duty and its multifaceted aspects.

I invite the noble Lord at least to reflect that consultation is important. It may not have been an absolute priority and necessity in the urgent and special circumstances of Northern Ireland, but with the complexities that this issue brings, such consultation is right.

Lord Lester of Herne Hill

I fully agree with that. That is why the amendment gives authority to the Government to apply that duty in a manner which is based on consultation between the Government and the Commission for Racial Equality. If necessary, we can add a wider consultation duty. But the amendment gives the necessary authority so that the Government can proceed now in the field of race discrimination rather than waiting to deal with all the complexities of other kinds of discrimination.

The United Kingdom has been criticised by the UN Human Rights Committee for not taking steps with sufficient vigour, and by the UN Committee on the Elimination of Racial Discrimination as recently as 1997. It criticised the United Kingdom for the lack of a similar positive legal duty on bodies working in the fields of health, education, social services, planning and housing as that which applied to local authorities. So we stand condemned by two respected international human rights bodies in the race discrimination field.

I do not use emotive or exaggerated language. I simply say that it is unacceptable for the United Kingdom to be pilloried in that way because of the refusal by consecutive governments to take effective action. The time is right. There is no reason why that duty cannot be included in this Bill any more than in the Greater London Authority Act, or in the Northern Ireland Act.

The noble Baroness, Lady Uddin, mentioned the sad story of the Liberals in Tower Hamlets. The first appalling job I had to do when I became a Member of this House was to investigate what some members of my party had done in Tower Hamlets. My somewhat strong report speaks for itself. We took, I hope, effective action—if one makes party political points, stronger action than has been taken by some parties in some parts of the country. The Liberal Democrats in Tower Hamlets needed this duty to be imposed on them, as do Labour and Conservative members in all public authorities.

We will not wait. The noble Lord, Lord Patel, kindly described me as an expert. I am not an expert. He is an expert. The reason that the noble Lord and the ethnic minority Peers in this House are experts is because they are potential or actual victims of race discrimination. They have the kind of expertise that I as a white, middle class liberal lawyer living not in Hampstead but in Herne Hill, next to Brixton, lack. I may be Jewish, but I am not visibly different in the same way that people of a different colour are. This House has a special expertise. Thanks to this Labour Government there are Members of this House from the ethnic minorities. I ask the Minister to listen carefully. From all sides of the House, they will not tolerate any further prevarication.

Therefore, I shall press something like this amendment with or without further detail. I shall withdraw the amendment, but I promise to return to the issue at Report stage. If we do not have a commitment by then, I propose to divide the House. I hope that we shall then at last unite together to get something sensible on the stocks so that we can proceed not with all deliberate prevarication but with all reasonable speed.

I am sorry if I sound a little cross; I am very cross. The answer given by the Minister is wholly unsatisfactory. I hope that Members of the Committee on all sides agree with me. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Remaining schedules and clause agreed to.

House resumed: Bill reported to the House without amendment.