HL Deb 27 January 2000 vol 608 cc1672-708

3.36 p.m.

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

My Lords, I beg to move that the Report be now received.

The House may be assisted in its deliberations this afternoon if I explain the Government's intentions with regard to two sets of amendments which were to be discussed during today's Report stage of the Race Relations (Amendment) Bill. In making these comments I express personal gratitude to the noble Lord, Lord Lester, for his great assistance in these areas and to other noble Lords for making clear their ideas about the two issues on which I wish to comment this afternoon.

Your Lordships will be aware that the Government are deeply committed to achieving a major change in race equality in our country. The Race Relations (Amendment) Bill is an important part of our programme to ensure that the public sector sets the pace, as my right honourable friend the Home Secretary said, in its drive towards race equality. We demand that the clearest possible message be sent out that discrimination is not acceptable and will not be tolerated. The Government, therefore, propose two changes to strengthen the provisions of this Bill.

First, after careful consideration we have decided to extend the indirect discrimination provisions of the Race Relations Act 1976 to the functions of public authorities to be caught by the Bill. We intend to table an amendment to provide precisely for that. We have always been in favour of this principle but have been concerned, we believe rightly, to ensure that any such provision is effective without leaving public bodies open to routine or vexatious legal challenge in circumstances where their policies are entirely proper.

Since the Bill was published, however, we have listened carefully to the arguments put forward and concluded that, on balance, the risk of spurious challenge is outweighed by the importance of the principle of including in the Bill indirect discrimination in respect of public sector functions. Direct and indirect racial discrimination is already prohibited under the terms of the Race Relations Act 1976 in the fields of employment, training, education, housing and the provision of goods, facilities and services in respect of the public and private sectors. The Act is already being extended by the Bill to new fields in the public sector which have previously been determined by case law not to be a service and to which prohibitions on direct or indirect discrimination do not therefore apply. The Act will now extend to areas such as the implementation of central and local government regulatory, economic and social policies and law enforcement in respect of indirect discrimination.

Secondly, the Government have always seen the importance of the duty to promote equality as a positive way of eliminating unjustifiable indirect discrimination in these and all other fields. Our setting of targets for ethnic minority recruitment, retention and promotion, and our guidelines for maintaining race equality inter-policy development and implementation are two examples.

We are already committed to placing the promotion of equality by public bodies on a statutory footing. We shall reinforce that commitment by bringing forward a government amendment to the Race Relations (Amendment) Bill to enshrine the principle on the face of the Bill as a positive duty, leaving room for consultation on how exactly the duty will operate in practice and how it will be enforced. Those are two important issues. The amendment will be brought forward at Committee stage in the Commons. Meanwhile, we are considering whether there should be any procedural safeguards consistent with the principle of non-discrimination.

I hope that that clarifies the position from the Government's point of view. These are significant changes. I believe that they will be broadly welcomed and I look forward to support from all corners of the House in ensuring that the amendments work to improve the quality and the nature of race relations in our country. They are important steps towards that objective.

Moved, That the Report be now received.—(Lord Bassam of Brighton.)

Lord Cope of Berkeley

My Lords, first, I should like to thank the noble Lord for that formal announcement of the Government's position on the Bill, which will no doubt be helpful for later debate. The actual announcement of the change of policy was, in accordance with our new, modernised constitutional convention, made on Tuesday by Mr Alastair Campbell. We read it in our morning papers yesterday. It was made again by the Home Secretary, and the text of the statement that the Minister has just read out was placed in the Library yesterday. However, its formal repetition by the Minister today is helpful.

Perhaps I may congratulate the noble Lord, Lord Lester, on his success in these two matters. However, some points remain to be dealt with. First, in Committee a few days ago the Minister told us, in effect, that sensible government would become impossible if the amendment were carried. He told us that an indirect discrimination law did not fit well with law enforcement or with social and economic policies. He told us that it would become a matter for the courts to decide whether much government policy was justified and gave examples of the policies that he thought would be at risk; namely, the New Deal for young people, winter fuel payments for pensioners, employment and education action zones, and so on. But now we are told that such court challenges do not matter any more.

I do not blame the Minister. He has said nothing that the Home Secretary has not previously said. The Home Secretary now says that the risk of challenge is minimal. It seems to me that the authority of Home Office statements is damaged by this change of policy—Home Office thinking changes 100 per cent from one week to the next. Are the Minister and his colleagues now convinced, for example, that what they said about the effect on law enforcement is rubbish? The case made by the Minister previously was pretty unconvincing, but nor has he given any reason to be convinced in the opposite direction.

A further difficulty arises from the Minister's statement. The Government are now in effect saying that without the two important amendments the Bill will not do, and that it is rubbish, particularly in regard to indirect discrimination. Yet we are asked to pass the Bill and send it, unamended, to the Commons. The House of Lords, whose composition was decided by Parliament only a few months ago, is asked to send to another place an ineffective Bill. Why not amend the Bill at Third Reading? There is provision for us to do so. The Third Reading is not due for another week; indeed we should be entirely happy to postpone Third Reading if more time is required to sort out the necessary amendments—although they were drafted some time ago by the noble Lord, Lord Lester.

Lord Lester of Herne Hill

My Lords, I thank the noble Lord for giving way. Perhaps I may clarify one matter. If the Government need time to make sure that the legislation is sensibly drafted, what on earth is the objection to the other place dealing with the matter when the Government have had time to consider it, then returning it to this House—the "half House" rather than the full House; Parliament presently being one and a half Houses, as it were—for us to examine at that stage?

3.45 p.m.

Lord Cope of Berkeley

My Lords, my objection is to this House being asked to send rubbish to another place. That is what the Government say the Bill now is. They say that it is incomplete and that it must be changed in a serious way. That is not acceptable. This House should not be asked to pass a Bill that is nonsense and which we know will be profoundly changed, when there is a perfect opportunity for us to change it. It is not as though this has happened at the last minute. The Third Reading is still to come. The Bill can, and should, be altered before it leaves this House.

Lord Peston

My Lords, listening to the noble Lord, Lord Cope—towards whom I am normally sympathetic—speaking for the Opposition, I am pleased for once that I was never made a Minister. Obviously, the Government can never do any right! I took part in the previous debate, and I am impressed that the Government have listened. If in future, as I very much hope, this House is to function as a place where the Government listen to reasoned debate and change their mind, I hope that the Opposition will not turn on them for doing exactly what we hope will happen. I do not believe that the Bill is rubbish. As I understand matters, the Minister argued the case as he saw it at the time. He listened to some of us. I am flattered that he was persuaded and he is now trying to do something about it. I agree with the noble Lord, Lord Lester: I can wait for the Bill to return from the Commons. However, I accept the point made by the noble Lord, Lord Cope, about amour proper. In that sense, I should prefer this House to make the changes. But it is merely a matter of amour proper. I do not think that I shall fail to rest over Easter because I have to wait for the Bill to return to this House.

My main point is to say thank you for this proposal. The Government have listened and have moved in the right direction. I, for one, very much look forward to seeing the amendments as specifically drafted.

Lord Lester of Herne Hill

My Lords, first, I thank the Minister for his extremely helpful statement, and I thank all noble Lords who have supported the changes proposed by the Government. Secondly, there is nothing in the criticism that the announcement was in some way inappropriate. My understanding is that because the Conservative Party was having fun and games in another place the announcement was not able to be made as was intended. As a result—

Lord Cope of Berkeley

My Lords, with respect, perhaps I may correct the noble Lord. The announcement was made on Tuesday. It was in yesterday morning's newspapers. Anything that might have happened yesterday and might have been affected by what happened in another place is not related to that.

Lord Lester of Herne Hill

My Lords, that is not quite right. The official announcement was made by the Home Secretary at about 5.30 yesterday evening. There may have been a leak in the newspapers, but I know for certain, because I inquired of the Home Office as to exactly when the statement would be made, that it was not made until 5.30p.m. yesterday. The reason it was made in the way that it was—namely, in a Home Office press release—was that it could not be made in another place for the reason that I have given. As I understand it—the Minister will no doubt say whether I am right or wrong—the intention was that there would be an Answer to a Parliamentary Question in another place. However, that is a minor point.

To return to the main point, we should congratulate the Government on listening and considering the arguments carefully on two very difficult questions. Perhaps I may explain briefly why they were difficult. It will save me having to move amendments later, so to do so briefly now will mean that I am not wasting time but saving it.

The concept of indirect discrimination and the difference between it and direct discrimination is something that only very few people in the world understand. It was entirely understandable that the Government would be troubled that their economic and social policies might be challenged time and again in the courts and that they would spend their time having to answer litigation instead of getting on with running the country. Therefore, careful analysis was needed of the case law which indicates that judges do not try to run the country and gives the Government the benefit of the doubt on matters involving economic and social policy. Other government departments had to be consulted because what is being provided in the Race Relations (Amendment) Bill will surely need to be included in due course, in, for example, the sex discrimination legislation. When that is amended, indirect sex discrimination by government will have to be tackled as well.

Five different government departments at present deal with equality. That is regrettable because it makes a co-ordinated approach more difficult. The Home Office, dealing only with race, had to consult widely on the concept of indirect discrimination.

From the speeches at Second Reading of the noble Lord, Lord Cope, and the noble Viscount, Lord Astor, it is clear that they are in favour of including the concept of indirect discrimination in the Bill. Indeed, the noble Lord, Lord Cope, described the Bill, in emotive words, as a "sham". I would never have dreamt of doing so. The noble Viscount, Lord Astor, indicated that he wanted to listen carefully to the Government's reasons for not including the concept in the Bill.

If Members on all sides of the House are agreed that the concept should be included, the only question is how it should be drafted. It is an easy matter to leave out the exception and to include indirect discrimination. There may need to be a procedural safeguard so that the Government are given a breathing space for a couple of months, as they are in the education sector, before proceedings are launched in this area; and they need time to think about the way to do that. I should have thought that it could be achieved by Third Reading because I do not think that it requires much careful drafting.

The more difficult matter is the positive duty, the second change the Government propose to make. The Government have always been committed to placing themselves and all public authorities under a positive duty. They have done so in the Northern Ireland Act. That is entirely commendable. The only argument was whether they would include the positive duty in the Race Relations (Amendment) Bill or later. Sensibly, the Government have decided to do so in this Bill. It will be a kind of experiment enabling one to see how the measure works in this country as well as Northern Ireland.

The amendment I have drafted gives the Government leeway to be able to consult with the Commission for Racial Equality, and more generally, and, by regulation to be approved by Parliament, to deal with the crucial matters of monitoring and enforcement. If the Government were to accept that approach, little redrafting would be required. On the other hand, if reasons about which I do not know make it more diff cult for that to be achieved by Third Reading next week, it would be sensible to have the matter dealt with properly in another place. I am sure that there will be no real issues of principles as those are common ground on all sides of the House. We can then deal with the matter at that stage.

I shall not move amendments on either subject. Therefore, perhaps I may add a couple of points. From what I read in the Daily Mail and from what I heard on the radio this morning about the views of Mr Gerald Howarth MP, speaking for the Conservative Party in another place, there seems to be a suggestion that by extending the law on indirect discrimination the Government will in some way hamper the police. That is complete rubbish and shows a total misunderstanding of discrimination law. The police have always been subject to the law on racial discrimination. The complaints that black people have made about police misconduct and malpractice have not been about indirect discrimination in the technical sense, but about racial assumptions about people affecting matters such as the stop arid search power: the notion that more black people than white people are stopped and searched, and so on. That is covered by direct discrimination.

In the wake of Macpherson, senior police officers across the country recognise that they must eliminate racial discrimination from their practices. They understand the need to secure full public confidence in all parts of the community. The notion that these changes will affect the police is completely misguided.

They will affect government departments and the way in which other public authorities function. They will have to have regard to the question asked by the noble and learned Lord, Lord Ackner, of an Attorney-General in a case in which I was involved: Is the maxim, "Think before you speak" incompatible with good government? The Attorney-General did not know how to reply.

The Government will now have to think before they act. I am sure they do so already. But that will not affect the police. They must think before they act because of the law which already forbids direct discrimination. Therefore, it is wholly unfair and misguided to attack the Government on the basis that they are handicapping the police. On the contrary, the police understand that they must not discriminate directly or indirectly.

Lord Cope of Berkeley

My Lords, before the noble Lord sits down, perhaps I may make it clear that my complaint about the Bill being nonsense at this point refers to the issue about indirect discrimination. I should be happy to leave the second point—positive duty—for amendment in the Commons. But I do not think that we should send a Bill to the Commons—the noble Lord rightly says that I described it as a "sham"; and it is still so at present—without the indirect discrimination clause being included if the Government argue successfully for that. I am glad to have the noble Lord's confirmation that that can readily be drafted in time for Third Reading either on the present timetable or with a further postponement of Third Reading.

Lord Lester of Herne Hill

My Lords, I agree that if it can be done by Third Reading, it should he clone. I shall not move those amendments today. It would waste the time of the House. There must be an offence called "wasting House time". Instead I shall leave the issue. The Government will no doubt then consider the matter. If they are able to table an amendment in time for Third Reading, so be it. If not, it is always open to any Member of the House to table amendments in order to raise the issue at that stage to see whether it is necessary to leave it over.

As regards the positive duty, I do not press the Government to attempt to get that right by next Thursday. That is unreal and not fair to them.

Earl Russell

My Lords, as one who in the past has made one or two critical remarks about the Government's attitude to this House, I feel it incumbent on me to express my intense pleasure that on this occasion the Government have listened to this House, have thought hard about the advice of this House, and have taken the necessary action. I express my thanks to the noble Lord, Lord Bassani of Brighton, and through him to the Home Secretary.

I have in the past made far too many criticisms of hastily drafted legislation to be in a position to make any complaint if the Government, determined to get it right, take a little time to do so.

Finally, does the Minister understand why, when I listened to the noble Lord, Lord Cope of Berkeley, I was reminded of a remark made by the noble Lord, Lord Healey? When he was Secretary of State for Defence he said that offering defence cuts to the Left is like throwing herrings to a sea lion. I am not a sea lion.

The Lord Bishop of Oxford

My Lords, from these Benches, I add our appreciation to the Government without any sense of smugness or crowing. It is a real tribute to the quality of debate in this House and to the capacity of the Government to listen and respond to rational argument. Many Members of this House will deeply appreciate this move.

However, one point of clarification is needed in the light of the remarks of the noble Lord, Lord Lester. Does the stop and search power come under the heading of direct discrimination rather than indirect discrimination? There is a great deal of confusion about this. It was widely reported in the press during the past week that driving home through London the Bishop of Stepney was stopped for the eighth time. I have never been stopped when driving through London or Oxford. Is the stop and search policy something which we have overlooked? Does it count as direct discrimination? Is it inadvertent indirect discrimination? We need clarification about the stop and search policy and what is and what is not allowed.

4 p.m.

Lord Lester of Herne Hill

My Lords, perhaps I may give some help. If the police stop and search black people more than white people in a given area because of prejudice or stereotyping, that is direct race discrimination. If the police impose a requirement for granting bail which applies equally to everyone in a formal sense—such as one has to have fixed employment or a fixed address—and that hits disproportionately at gypsies, although it is not intended to but has that effect, and a member of the Roma community challenges that decision and uses figures to support the challenge, that would be indirect discrimination.

The problem is that these are not watertight concepts. Very often a complainant needs to bring a case raising both. If one reads Dr Marion Fitzgerald's evidence to the Royal Commission on criminal procedure she explains why the concept of indirect as well as direct discrimination is very important. I hope that I have clarified the position, but if I have failed, all I can say is that I have also failed in the courts to explain it as well.

Baroness Howells of St Davids

My Lords, I warmly welcome the news that the Government have ensured that the provisions of the Race Relations Act on indirect discrimination will apply to public bodies in respect of their functions. This is a decisive step towards meeting the aspirations of the findings of the Macpherson report that our public bodies set themselves the highest standards and that they are seen to keep them and that they lead by example.

I thank my noble friend Lord Bassam of Brighton for the way in which he has conducted the dialogue on this Bill. As promised, my noble friend and his colleagues have kept their door open so that alternative views can be discussed. We should be proud that at last we have a listening government.

The Government's handling of this Bill has been exemplary. In the course of the dialogue they have listened. Their announcement shows that they have also acted. I commend my noble friend on that. I express a debt of gratitude to all noble Lords who contributed to this Bill and especially to the noble Lord, Lord Lester, whose knowledge of the Race Relations Act is second to none. He spoke not only with the vested interest of the architect of the Act itself, but as someone who cares passionately about fighting discrimination and promoting human rights.

I also pay tribute to the officers of the CRE for their close working with the Government in this matter. This Bill is the first major piece of legislation in the field of race relations since 1976. It follows three reviews of the Race Relations Act by the CRE, which went largely ignored by previous Home Secretaries.

The CRE's latest review in 1998 recommended some 50 changes to make the Act stronger and more effective. This Bill has a long way to go in realising those aims. But this step taken by the Government should be applauded. It makes our country a better place to live for all its citizens.

Your Lordships may be aware that the chairman of the CRE, Sir Herman Ouseley, will be retiring from that position in the very near future. I believe that this Bill will serve as a tribute to his reputation as someone who has stood up and can be counted on when fighting for racial equality. The Government's announcement could not be more timely to a man who gave all of his time and eloquence seeking equity and justice.

I am pleased for the many millions of people who have over many years suffered discrimination on racial grounds in whatever form. If anyone deserves a tribute for perseverance in the face of adversity it is the black community, which has been the victim of both direct and indirect discrimination.

I said in Committee that I believed that this Bill had the potential to be one of the Government's flagship Bills. It has kindled the beacon of equality about which the Home Secretary spoke in another place last year. It is now the responsibility of all to see that the beacon burns brightly as an example to Europe and beyond for many generations to come.

Lord Avebury

My Lords, I would like to echo the tributes which have been paid to my noble friend for the work that he has done on this Bill and indeed for all that he has done to promote racial equality going back over a period of 25 or more years and for most of the time that I have been in political life. I remember very well the signal contribution that he made to the original Race Relations Act in the middle 1970s. Because he has been involved in every single piece of legislation since then, the words that he has spoken both in this House and in the discussions we have had with the noble Lord, Lord Bassam, have fallen on receptive ears.

I thank not only my noble friend but also the Home Office and the noble Lord, Lord Bassam, not just for what he has done on the Floor of the House, but for the careful way in which he has listened to representations 'behind the scenes and brought in experts to take account of the views which your Lordships have expressed. I believe that we should be tremendously grateful to the Home Office. It is not very often that I find myself saying these nice things about the Home Office, but this is one occasion on which we can be completely unreserved in expressing our gratitude for the way in which it has handled the discussions on this Bill and its final outcome, which seems to be wholly admirable.

With some hesitation, perhaps I may add one word to what my noble friend said as regards the stopping and searching of the right reverend Prelate the Bishop of Stepney. From reading the account of that incident in the newspaper, it seems that the police acted unlawfully. It is clear that when the Bishop asked the police why they had stopped him they had no reason whatsoever to do so. But they went further and required the right reverend Prelate to open the boot of his car when they had no possible excuse for that action.

I believe that disciplinary action should be taken against police officers who exceed their responsibilities and step outside the law on stop and search which is perfectly plain. One has to have a reasonable excuse for believing that a law has been broken before someone is stopped. In the case of the right reverend Prelate there was no such excuse.

That matter aside, I repeat that we have an excellent offer from the Government. It would be churlish not to accept their condition that they need a little more time to put it in place. I am perfectly happy with the solution that the noble Lord, Lord Bassam, offered, with the rider suggested by my noble friend that if anyone wants to return to this matter they can do so at Third Reading. I believe that the Rouse should be well content.

Baroness Whitaker

My Lords, in adding my congratulations to those of Members on all sides of the House on the responsiveness of my noble friend, I should like to add one point. He is responding to a much more diverse House than during the passage of the previous race relations legislation. He has taken full advantage of the range of experience that your Lordships have and which can be called on. That fact should now stand the Government in good stead for future legislation. When we come to consider the future of this Bill I hope that, with the experience of my noble friends, we can also look at the definition of public authorities That has not been mentioned and I would not seek to raise it in any amplified way now.

Lord Bassam of Brighton

My Lords, having received words of praise from all corners of your Lordships' House, I feel humbled. There has been a most unusual and exceptional outbreak of friendship within the Chamber and we should be grateful for it. I am sure that it will last as long as it needs to. The noble Earl, Lord Russell, said that he wanted to express his intense pleasure. I have never before experienced his intense pleasure and it is a most welcome circumstance. I am delighted with your Lordships' response.

The noble Lord, Lord Cope, said that he was still to be convinced, but he seems to take a lot of convincing either way. In Committee, he was not convinced by the Government's answers in the other direction, stating: I do not believe that to he a strong argument".—[Offical Report, 11/1/00; col. 566.] At col. 567, he said of the Government's position: My conclusion is that if the Government want to persevere with the clause in its present form [indirect discrimination not being taken into account] they must make a much better case than they have so far". Which way does he want it? Does he support the Government in their development of policy as set out today or is he against the policy development? I fail to understand where Members opposite are coming from on this.

I had hoped that they would join with us in seeing this as an important area of policy development. It is worth reminding your Lordships that for 18 years we had no legislation or commitment from the Conservative government towards improving the quality and nature of race relations. We went through some traumatic times on race relations matters. I well remember the impact of the Scarman Report and the many things it revealed to us about ourselves. Surely, that was a golden opportunity for the Conservative government to consider their position and improve and strengthen race relations. They did not and consistently failed to do so.

We have now brought forward legislation which addresses many serious issues rightly raised in the context of the Macpherson Report and the inquiry into the death of Stephen Lawrence. This is an historic opportunity and we need to grasp it. In the changes that we have announced that we shall bring forward in another place we have demonstrated that we have done exactly that.

Perhaps I may comment on the remarks of the right reverend Prelate and his concerns about stop and search in order to clarify the Government's position. We always believed that what we had in terms of the draft Bill, and what was contained in earlier legislation, dealt directly with the effects of what in most circumstances might be perceived as direct discrimination emanating from certain police operations and actions. We believe that to be the case. What we have announced today does not change the situation. We remain convinced that stop and search is a highly valid, effective method of police intervention to prevent criminality in all forms. That remains the case and we fully support it. What we have announced today changes nothing in regard to the way in which the police work. Fears have been whipped up by others inside and outside this Chamber and they are wrong to address the issue in that way.

Perhaps at the outset of my announcement I was not as generous in my thanks as I might have been. I believe that the noble Lord, Lord Lester, should be greatly thanked for his work on the Bill in this Chamber and behind the scenes. During our exchanges I learnt a great deal. I am not a lawyer—I do not have the benefit of a legal training—but I have appreciated the issues that have been raised, almost in the sense of a tutorial, and I have benefited greatly.

I also want to pay tribute to Members on the Labour Benches who made their views clear to me. They described them most candidly in your Lordships' House and raised important points privately. We have benefited from their wisdom and advice and that should not be underestimated. I pay particular tribute to the noble Baroness, Lady Howells, who speaks from a rich experience, as I said on Second Reading. Her contributions have been very telling.

I hope that today in the further consideration of other issues and amendments we can move forward in a spirit of good will. It is an area of public policy making that requires that. We want fundamentally to change the way in which race relations work and are affected by legislation and there are important gains to be made here. None of us can afford to tolerate racism in any form, shape or manner. This legislation will help to empower people and authorities in tackling that and it will provide a positive platform on which we in government, the public service generally and those committed to improving the quality of race relations work in future. For those reasons, I am happy to have made the announcement today.

On Question, Motion agreed to; Report received.

4.15 p.m.

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

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

The noble Lord said: In moving Amendment No. 1, I shall speak also to Amendments Nos. 3 to 7, 11 and 13. We have had several full debates on the issue, so perhaps I may summarise them and suggest a practical solution.

The amendments are designed to replace Schedule 1, which gives a list of public authorities that would be subject to the extended Race Relations Act and to the duty that will be included when the Bill is amended in another place, with a substituted list giving the generic definition contained in Amendment No. 11. That amendment contains a general definition of "public authority" and comes from Section 6 of the Human Rights Act 1998. It provides that: 'public authority' includes any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament".

The schedule is much wider than the equivalent schedule in the Northern Ireland Act. The schedule in that Act leaves a great deal of scope for ministerial discretion as to whether particular government departments—for example, the Home Office or the Lord Chancellor's Department—are to be added as public authorities and subject to the public policy duty to eliminate discrimination and to promote equality in the Northern Ireland Act.

The schedule in the Bill is broader and does not leave scope for such loopholes to be filled by ministerial discretion. However, a significant problem remains about the schedule. What happens when a privatised body is exercising public functions, which is not in the schedule even as presently drafted? The problem is that there is then a gap between the Human Rights Act, which forbids discrimination in relation to convention rights, broadly defines "public authority" and would cover a privatised body exercising public functions, and the Race Relations Act. That Act is a specific implementation of the Human Rights Act in the race discrimination sphere.

The amendments present your Lordships with an either/or choice; either have a specific list in the schedule or have a generic definition. The advantage of the Government's action arises in relation to a public duty, because when another place incorporates that duty into the Bill it will want to link it with defined public authorities. That is a very good reason for having a scheduled list.

On the other hand, in my view one also needs to have a catch-all, general definition which covers the privatised public authorities. In other words, I believe that one needs the schedule which these amendments would leave out, but one also needs the generic definition which Amendment No. 11 would put in. I thought about that only relatively recently. I confess that I had been prompted to do so by a little bird in the Home Office, if not one who speaks on behalf of the Government today. Therefore, the Government must not be bound by it, but the idea came as a result of my discussions. I believe that the answer to the problem may lie in keeping the scheduled list, but adding Amendment No. 11. One cannot do that with the amendments as they stand because they present the House with an either/or choice. I hope that I have sufficiently explained the issues. I beg to move.

Lord Cope of Berkeley

My Lords, the speech of the noble Lord, Lord Lester, has answered one of the questions that concerned me at Committee; that is, what was the practical difference between the two ways of defining the public authorities to whom the Bill is to apply. The practical difference appears to lie in privatised bodies exercising a public function. Clearly, it is right that through this legislation a privatised body which exercises public functions should not be placed in a different position from a public body which exercises the same functions. I believe that that is what lies behind it.

However, the solution now being offered by the noble Lord, Lord Lester, seems to me, if I may say so, a typical Home Office solution. It did not surprise me that he had been inspired to make that decision through conversation; that is, if we are not quite sure which is the best definition, let us have the belt and braces and make sure that both are included. That may be the right way to proceed. In some respects it is an abstruse legal point. We all sit in this Chamber as though in a seminar. I find myself in the same position as the Minister, learning more about the law as we go along. We have all learned that common law and other measures apply. Nevertheless, it is obviously neater that it should be in statute law as we are revising the statute law on this occasion.

Lord Avebury

My Lords, I believe that we are all in the same position of sitting at the feet of my noble friend in this seminar or tutorial to which the noble Lord, Lord Cope, referred. I believe that the last suggestion that was made is extremely ingenious because it gets round the objection that the noble Lord, Lord Bassam, put to us when we discussed the matter in Committee. However, one must have certainty in placing the duty on public authorities, as we intend to do. My noble friend's suggestion of having the two sets of definitions seems to get round that point. At the same time, it takes care of the point about which I was anxious and which I should like to repeat; that is, if we did not have the catch-all or generic definition, there could be a danger of mismatch between this legislation and the Human Rights Act.

The noble Lord, Lord Bassam, kindly wrote to me after the Committee stage. He said that the situation which I foresaw was unlikely to arise, and that there would be some difference in the way that the Human Rights Act and this legislation would apply. He said that if the situation did arise then of course the order-making power could be used to add the body to the schedule at the earliest opportunity. Therefore, any loophole could be closed quickly. I am not sure that that is completely satisfactory because, the timetable of Parliament being what it is, it may not always be possible to lay orders instantaneously. Therefore, there could be a period of time in which that kind of gap could exist between the two pieces of legislation.

If the noble Lord, Lord Bassam, will allow me to quote from his letter, I should like to lay before your Lordships another point which he made: Because of the differing natures of the RRA [Race Relations Act] and the HRA [Human Rights Act], it might not always be necessary to take such action. It would not necessarily be the case, if a court found that a body was carrying out functions of a public nature in the context of the HRA, that it would be necessary for that body to be listed in the Schedule to the RR(A)B [Race Relations (Amendment) Bill] in order for the function to be covered by the RRA. That would depend on whether or not the functions in question were already fully covered by provisions in the existing RRA. We would wish to take each case—if there were any—on its … merits". I have tried to construe that paragraph. I spent a few minutes carefully examining the Race Relations Act, but could not for the life of me imagine the circumstances which the Minister was outlining. I believe that it would be helpful if the Minister could tell us this afternoon how a court could find that a body was carrying out functions of a public nature, yet it would not be necessary to extend the schedule so that that body was listed. I am sure that it would be most useful if the noble Lord could explain that to the House, as we would know whether or not a gap exists.

Lord Bassam of Brighton

My Lords, the Government considered carefully the points made by noble Lords at Committee stage on this issue. I note again what has been said this afternoon. However, we continue to believe that the approach that we have adopted in defining public authorities is the right one. Our main reason for maintaining that belief is that there is a need for clarity. If one looks at the schedule, it is crystal clear what is intended by way of definition. We believe that that remains the best way to deal with the matter. If a body is on the list, it is clear what is to be covered. There can be no argument about that. The noble Lord, Lord Lester, in a sense has anticipated one of the issues on which we wished to be clear; that is, it will be much easier to use the schedule if we move forward a positive duty to promote race equality. I believe that the noble Lord accepts that point and that he probably did so from the outset.

Of course, it is true that the Government believe that on balance the broad definition approach is right for the Human Rights Act. Obviously, we retain that position. While a list approach would have brought clarity there too, we judged—and we took that consideration on board at the time—that it would he inappropriate as we wanted to keep the definition broad so that domestic legislation would always be in step with developments in case law in Strasbourg.

However, it does not follow, as night follows day, that that approach is right for the Race Relations (Amendment) Bill or, for that matter, for the Freedom of Information Bill. Using the human rights approach in the context of this Bill would mean that it might not be at all obvious to public bodies how and whether the Bill affects them. The schedule approach makes it much clearer. We believe that such clarity is essential if the Bill is to work properly and effectively.

The noble Lord, Lord Avebury, raised the question of correspondence and, if I may, I shall try to deal with his point. He raised the issue of what might happen if the courts find that a body is a public authority for the purpose of the Human Rights Act, yet it is not listed in Schedule 1 to the Bill. As the noble Lord rightly drew to our attention, I wrote to him on that point. A copy of the letter has been placed in the Library of the House, where it is accessible for everyone to see. It may be useful if, again, I explain our thinking. First, we believe that it is highly unlikely that such a situation will arise because of the care that we have taken to ensure that the schedule is comprehensive. Of course, we are always open to suggestions as to how we may make it even more comprehensive than it is already.

Secondly, if such a situation arose where there was a gap, we could close the loophole quickly, as the noble Lord recognised, by using the order-making power in Section 19B(4) in Clause 1(1).

Thirdly, if a court found that a body was carrying out functions of a public nature in the context of the Human Rights Act, it would not be necessary for that body to be listed in the schedule to this Bill in order for the functions to be covered by the Race Relations Act. That would depend on whether or not the functions in question were already fully covered by the existing provisions of the Race Relations Act. All in all, we want to take each case on its merits.

4.30 p.m.

Lord Avebury

My Lords, that is the point which I was seeking to elucidate. I was asking the noble Lord to give me an example of a case which is fully covered by the Race Relations Act and which therefore, when it came before the courts under the Human Rights Act, was deemed unnecessary by the Government to extend the schedule accordingly.

Lord Bassam of Brighton

My Lords, the point which the letter tried to convey was that some public authorities are already wholly covered by the Act; for example, education bodies are comprehensively covered and are also listed in Part III.

I believe that we can rely on the safety of the list. The noble Lord, Lord Lester, suggests that we should have an each-way bet on this to ensure that we are fully covered. I shall read with interest in Hansard what he said about that. I am not making any commitments one way or the other. But we are confident that the approach which we have adopted is sufficiently rigorous and thorough. On the basis of taking what we have said on trust, I hope that the noble Lord will be happy to withdraw the amendment.

Lord Lester of Herne Hill

My Lords, before the Minister sits down, I wonder whether I may clarify the position. I realise, to be fair to him, that he is dealing with an argument which arose from what I said rather than from the amendments in their present form.

But is it not the case that the list in the schedule at the moment does not include every body within the broad definition in Section 6 of the Human Rights Act, including a privatised body that is exercising functions of a public nature? That is the first question. I am sure that it is common ground that the schedule definition, although very broad, does not include as wide a group of public bodies as does the Human Rights Act.

Secondly, if it is right that there is that gap, what is the policy objection to keeping the schedule, which is clear and certain, for use with the public duty amendment but having a catch-all provision where one is not concerned necessarily with the public duty but with forbidding direct and indirect discrimination by public authorities?

Perhaps I may ask the Minister to look with an open mind at that point because it may be desirable to return on Third Reading with a different kind of amendment which keeps the schedule but also has a generic catch-all definition. Is he willing to undertake to consider that point as a different approach?

Lord Bassam of Brighton

My Lords, I understand the questions which the noble Lord is raising. It is common ground that the Government agree that private bodies exercising public functions should be covered by the Act in respect of those functions. We believe that the Bill as drafted allows such bodies to be added to the schedule. It is the Government's intention to do so. We should wish to consult widely on any such order.

The approach which the noble Lord has suggested this afternoon was not, as he says, the original general approach that he was going to suggest to us. I have listened carefully to his comments. As I said earlier, I am happy to consider what he has said and I shall read Hansard very carefully. I can see the beauty of his solution but other considerations may well apply.

We do not see any great difficulty in adding to the schedule. That is a simple and effective way of broadening the definition. But I undertake to have another look, without any commitment, at this matter. I appreciate the comments which the noble Lord has made and the points he has raised on this issue. I suggest that that is the best we can do this afternoon. I should be happier if we could leave the matter there.

Lord Lester of Herne Hill

My Lords, I am extremely grateful to the Minister for his reply. Without repeating what has been said, perhaps I may try to clarify for the last time today what this is really about.

I take as a hypothetical example a privatised prison organisation. Let us assume that that privatised prison organisation discriminates on racial grounds against a prisoner and the prisoner brings proceedings against the privatised prison body. Let us assume that the privatised prison body is not listed in the schedule, but there is no doubt that under the Human Rights Act, it would be a public authority which must not discriminate against somebody in the enjoyment of the right to liberty or something of that kind. Let us now assume that that victim brings proceedings against the privatised prison authority. What the Minister's letter to my noble friend Lord Avebury means is that there would then have to be case law to determine whether or not that privatised body was exercising a function which fell within Section 20 of the existing Race Relations Act.

I can only say, having read all the cases on Section 20, that the case law is in a complete mess and the case would have to go to the House of Lords. The correctness of the Re Amin decision would have to be reconsidered. That is what the Minister's letter really amounts to because one could not tell, without analysing all that case law, whether or not it was within Section 20.

The remedy given by the Government is to add to the schedule that body which I assume is not there already. That does no good for the victim because the victim's case will fail because the body has not already been included in the schedule. So there is a completely ridiculous gap and there will be a lot of litigation for no good reason.

Therefore, it seems to me that the solution is to distinguish between the positive duty which needs to be linked to the schedule and the general duty not to discriminate, with a remedy which needs also to have a generic definition. I hope that I have clarified where I stand on this. Therefore, I propose to reflect on this, as will, I am sure, the Government and then see whether it is possible to agree or, if we disagree, to return on Third Reading with an amendment which puts forward an option different from that suggested today. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 to 7 not moved.]

Lord Lester of Herne Hill moved Amendment No. 8: Page 2, line 21 at end insert— ("(9) Nothing in this section shall make unlawful any measures appropriate and necessary to meet the special needs of persons of a particular racial group or any measures designed to prevent or compensate for disadvantages suffered by persons of that racial group.").

The noble Lord said: My Lords, I think I am right in saying that the Government have already indicated in previous debates that they are sympathetic to the need for an amendment along these lines to widen the circumstances in which positive action can be taken to meet the special needs of persons of a particular racial group or any measures designed to prevent, or to compensate for, disadvantages suffered by persons of that racial group.

The amendment permits public authorities to take proportionate measures to ensure that the special needs of racial groups are met. It supplements the ability of public authorities to justify policies and schemes that are intended to benefit particular communities.

In Committee the noble Lord, Lord Bassam, said that he "saw merit- in the amendment and would like to take it away to consider. Section 35 of the 1976 Act allows positive action as regards access by ethnic minorities to facilities or services to meet their special needs in the context of education, welfare and ancillary benefits. As it stands, the section is too narrow and too confined in scope. Our amendment would expand the ability of public authorities to take positive action when appropriate to meet the needs of a particular racial group.

Where special measures are targeted on grounds such as language, employment history and prospects, or length of residence, that could potentially constitute indirect discrimination. That was one of the Government's objections to widening the law to cover indirect discrimination. The amendment will enhance the Government's ability to take special measures and reduce the possibility of spurious and misconceived cases.

The amendment reflects the European Commission's proposal for a racial equality directive. As I understand it, that directive has strong support within the Government and there is a similar exception in the directive. New Zealand has a similar piece of legislation in Section 73(2) of the Human Rights Act 1993, and I understand that Ireland is introducing a similar provision in its Equal Status Bill. So there is solid support for an amendment of this kind. I beg to move.

Lord Cope of Berkeley

My Lords, I realise that there is a connection between this amendment and Amendment No. 2, which was not moved. That amendment dealt with indirect discrimination to which the noble Lord, Lord Lester, drew attention. My only doubt about this amendment is whether it is necessary. We know that any proper reason for an action—I do not refer to discriminating racially—is not covered by the Bill or the 1976 legislation. I share with the noble Lord, Lord Lester, the desire to avoid spurious and misconceived cases clogging up the courts and everybody's time. If it is necessary to achieve that, perhaps we need a provision of this character in the Bill. However, it seems to me that the principle, at least, is covered in the 1976 legislation and, therefore, in this legislation. If it is required, we should consider it, but I am sure that the noble Lord, Lord Bassam, has reflected on it as he promised and we shall hear the results of his reflection now.

Lord Bassam of Brighton

My Lords, as I explained when debating this amendment in Committee, it would allow positive action to be taken in the functions of public authorities to which Section 19B applies. The aim of positive action is to create a level playing field. The amendment broadly follows the approach taken in Section 35 of the Act which provides for positive action in relation to the access of racial groups to facilities or services to meet their special and individual needs in the context of education, training, welfare, or any ancillary benefits. In fact, there is a degree of overlap between this amendment and Section 35.

In Committee I agreed, as has been acknowledged, to give further consideration to this amendment. In view of the Government's decision to bring forward an amendment to extend Section 19B to include indirect discrimination, we need to consider the amendment further—as we are doing—in that context. To the noble Lords, Lord Lester and Lord Cope, I say that it would help all of us if this amendment were withdrawn. We need to reflect on it further. We need to engage in more discussions on how to bring forward something that is fit for the purpose. I am grateful to the noble Lord for tabling the amendment, but if lie will take that explanation as gospel I shall happily do some more work on the matter so that it fits with other parts of the emerging legislation.

Lord Lester of Herne Hill

My Lords, the word "grateful" will appear so often in this debate that those who have to report our words in Hansard will become tired of having to set it out. I am genuinely grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lester of Herne Hill moved Amendment No. 9: Page 2, leave out lines 22 to 25 and insert— ("(1) Nothing in section 19B shall render unlawful any act done by a relevant person in carrying out immigration and nationality functions in affording persons of a particular nationality, religion, or ethnic or national origin special treatment on humanitarian grounds.").

The noble Lord said: My Lords, Amendment No. 9 stands in my name and those of the noble Baronesses, Lady Prashar and Lady Howells. In previous debates I have said a great deal about this matter. I shall not repeat what I have said. The Minister sent me two letters explaining the position within the Home Office. Having read the letter of 26th January I now understand better than I did before what the concerns are of the Immigration and Nationality Directorate. However, I am still concerned about the great breadth of the exception, as it stands, in authorising ethnic discrimination in respect of any aspect of immigration control or the conferring of naturalisation and the effect that that may have in damaging the good reputation of the Immigration Service.

I have already expressed those views, and I believe it would be more sensible not to add to my comments—I know other noble Lords wish to speak to this amendment—but to listen to the Minister's explanation. No doubt he will put on record the substance of his letters to me and consider the matter further. I beg to move.

Baroness Prashar

My Lords, before I speak to this amendment I want to congratulate the Government on the two announcements that have been made. The extension of indirect discrimination to public authorities is particularly welcome. However, on this issue, to date I have heard no clear or convincing case for the exception that would allow Ministers of the Crown and immigration officials to discriminate on grounds of ethnic and national origin. Nothing that has been put forward has convinced me. I have carefully studied the Minister's letter to the noble Lord, Lord Lester, which was placed in the Library, and that has concerned me even more. I shall quote the paragraph that causes me concern: It has also become clear during the course of our examination that it is also necessary on some occasions for the Immigration Service to differentiate between individuals on the basis of their ethnic or national origin. As an example, from time to time, the Immigration Service detects Chinese nationals with falsified documents that misrepresent them as Malaysian or Singaporean nationals of Chinese ethnic origin. Were this problem to grow significantly, it would be necessary for the Immigration Service to scrutinise with particular care the documents presented by these nationals of Chinese ethnic origin and to interview them". I see the problem. My concern is that that would actually perpetuate stereotyping and that needs further consideration. Furthermore, in my view, this exception is incompatible with the principle of non-discrimination that the legislation is designed to serve. It will undermine the confidence of ethnic minorities in the legislation. I, for one, have vivid memories of the case of the East African Asians who, in 1968, were treated differently on grounds of their ethnic and national origin. As noble Lords know, the matter was taken to Strasbourg. That has had a long-lasting adverse effect both on ethnic minorities and on race relations generally.

Exceptions in immigration, as other matters, should be based on objective considerations, such as conditions in countries of origin or fear of persecution, and not on ethnic or national origins. I fear that this blanket exception will give unfettered power to Ministers of the Crown and immigration officials to discriminate on grounds of ethnic or national origin, which may be administratively convenient but in my view is totally unacceptable on any other reasonable grounds. For that reason, I urge the Minister to reconsider the position.

Lord Avebury

My Lords, the noble Baroness referred to the case of the Chinese who were detected at immigration presenting documents purporting that they were of Malaysian or Singaporean nationality. Can the Minister explain that a little further?

If those people were asylum seekers coming from the People's Republic of China, clearly they had good reason for presenting those documents because they would not be able to leave China and come to the United Kingdom as refugees using Chinese passports. As the noble Lord, Lord Bassam, knows well, the problem of false documents has been dealt with extensively on the Floor of the House and in the courts. It has been ruled that the presentation of false documents by an asylum seeker is not a criminal offence and that consideration of it must be deferred until the end of the asylum process. I am mystified, therefore, that the Minister should give that example in support of the Home Office policy on discrimination by the Immigration Service.

Conversely, I can see every argument for a provision such as that suggested by my noble friend because there are instances where the Immigration Service positively discriminates in favour of certain nationalities. For example, it is well known that the ports at entry treat Somali nationals favourably because they know what the situation is in Somalia. There is no proper government and people who belong to the wrong group are at risk of being killed by armed factions. Therefore, great sympathy is applied in consideration of applications for asylum by Somali nationals. More or less all of them are accepted as qualifying for exceptional leave to remain, and I have no quarrel with that when I look at the situation in their country of origin. But if it is necessary to allow that kind of thing to happen explicitly, a provision should be put on the face of the Bill while we have the opportunity.

Lord Cope of Berkeley

My Lords, I too had the opportunity, thanks to the courtesy of the Minister, to see the letter of 26th January to the noble Lord, Lord Lester. On the whole I found it helpful in explaining what the Government were attempting to achieve.

The noble Baroness, Lady Prashar, quoted the example (given in the letter) of Chinese nationals with false documents. I make a distinction—it has been made many times before both in this House and elsewhere—between those who, for obvious reasons, are obliged to travel on false documents (or for that matter with no documents) and those who when they arrive attempt to deceive our Immigration Service by presenting false documents. It may be that they do not realise the quality of our Immigration Service or the way in which it works. But that is a different matter from someone escaping from China or some other country where they are being persecuted. To arrive here and attempt to gain entry on false documents needs a lot more explanation. That is why the Home office is concerned, and the Minister indicates concern in his letter, that the Immigration Service should be able to scrutinise entry particulars carefully on arrival. It is not only the Chinese, of course; there will be comparable cases from other parts of the world from time to time.

Lord Bassani( of Brighton

My Lords, your Lordships will recall that when the House debated this matter in Committee, I explained the Government's view that the proposed amendment would leave the immigration system without adequate legal protection. I also explained why we considered it necessary to retain the existing proposed exemption for immigration and nationality functions in Clause 1, new Section 19C. The effect of the amendment would be to remove the existing formulation and replace it with a much narrower provision covering special treatment on humanitarian grounds.

I made clear our view that the existing legal safeguards provided in Section 41 of the Race Relations Act 1976 would be insufficient to allow the immigration system, which necessarily involves some discrimination on grounds of nationality or, on occasions, ethnic or national origin, to continue to operate as Parliament intended. The Government's view has been informed and supported by the case law.

Any system of immigration control necessarily involves discrimination on grounds of nationality. I hope that there is now common agreement on the need for an exemption that allows immigration staff and Ministers to discriminate on grounds of nationality where such discrimination is properly authorised or required.

I understand the noble Lord's concerns about the exemption for immigration and nationality functions in relation to discrimination on grounds of ethnic or national origins. Noble Lords will recall that in Committee I undertook that the Government would look again at these issues in detail. It is for that reason that the correspondence referred to was conducted.

We carefully considered whether the exemption in relation to ethnic or national origin is necessary and if so, whether it should be narrowed. As I explained earlier, that was the purpose of our correspondence; that is, to advise Members of our considerations and to try to be helpful. We concluded that the exemption in its current form in Clause 1, new Section 19C, is necessary and that there is no real scope for restricting it further. There is at least one precedent for Parliament permitting distinctions to be made by reference to a person's origin in this context; namely, Section 41(3)(a) of the Immigration and Asylum Act 1999 which re-enacts an amendment made to the Immigration (Carriers' Liability) Act 1987 made by the Asylum and Immigration Appeals Act 1993.

As I made clear in Committee, we believe that the exemption is necessary to allow the immigration system to handle asylum applications and cases requiring exceptional treatment on compassionate grounds. The noble Lord made clear his view that the courts would not find that the Home Office had acted unlawfully in cases where differential treatment had been provided to different ethnic or national groups because of the situation in their countries of origin. However, as I also made clear, we simply cannot afford any degree of ambiguity to arise in relation to the immigration and asylum system. We are required in practice to operate policies that are country specific, and to treat applications alike without always considering the individual circumstances of a person falling within the relevant ethnic or national group and who is from the country concerned.

I listened with care and interest to what the noble Baroness, Lady Prashar, had to say in support of the amendment. Although in a historical sense I can understand her concerns about the issue, it has become clear to us during the course of our examination of the situation that it is necessary, on some occasions, for the Immigration Service to differentiate between individuals on the basis of their ethnic or national origins. I shall go through the example I gave in the letter again because it is important to understand it. From time to time, the Immigration Service detects Chinese nationals with falsified documents that misrepresent them as Malaysian or Singaporean nationals of Chinese ethnic origin. As has been said, were this problem to grow significantly, it would be necessary for the Immigration Service to scrutinise with particular care the documents presented by these nationals of Chinese ethnic origin and to interview them. But with 89.1 million passenger arrivals in the United Kingdom during the last financial year, of which 12.2 million were subject to immigration control, even with the best will in the world the Immigration Service does not have the capacity or the resources to interview every Malaysian or Singaporean seeking to enter the country, irrespective of their ethnic origin. An assessment of risk, based on available intelligence, must be made. Moreover, it has to be said that this risk assessment may sometimes have to be based on the ethnic or national origin of passengers. I give way.

5 p.m.

Lord Lester of Herne Hill

My Lords, I am most grateful. I am very worried by the answer and the explanation that has been given. Perhaps I may clarify exactly what we are talking about. If one were dealing with would-be immigrants who were white—that is to say, European in appearance—who came, say, from the Russian Federation, there would be no basis to treat them differently because of their ethnic origin or the kind of grounds mentioned in the letter.

The Minister is saying that because people look Chinese we must reserve the right to single them out for special treatment on the basis of their appearance—their ethnic characteristics—and the fact that they are not white. We could not do that with anyone who was white because there are no distinguishing ethnic characteristics of that kind. If that is what is being said, does not the Minister realise that that is quite different from singling out people on the basis of their country of origin or their nationality: it goes to the root of what they are and cannot help being because of their ethnicity, their colour or race. Does the Minister recognise that? Am I correctly understanding what is said in the letter and what is being said by him today?

Lord Bassam of Brighton

My Lords, I am trying to explain to the House that, yes, there will be some circumstances where, on the basis of careful intelligence and a risk assessment, we have to make that judgment based on what is perceived as an individual's ethnicity.

Perhaps I may develop the point further. During 1999, the Immigration Service detected more than 5,000 attempts to enter the United Kingdom using forged or counterfeit travel documents or visas. The noble Lord, Lord Avebury, quite understandably referred to the circumstances in which someone might use documents of that sort because he is fearful of the situation in the country from which he originated and this is the best way to effect an escape. However, I urge noble Lords to accept that it is the case that scams are being operated essentially by people who are seeking to come to the United Kingdom because it is an attractive place to live and because it is in their economic interests to come here. These scams are being operated to get round the effect of our immigration legislation. That cannot be acceptable. It is in such extreme circumstances where we suspect that sort of criminality that we feel we need this exemption. That is why we are putting forward this argument.

We do not desire pro-actively to discriminate. But if we do not have the capacity to mount such operations, with a carefully thought-through risk assessment, our system of immigration control will be fundamentally weakened. We do not believe that that is desirable or that that has been Parliament's intention in the past. We do not believe that it accords with legislation that we have recently put on the statute book through the Immigration and Asylum Act 1999.

I believe that the case we have made highlights the very real challenges faced by immigration staff in performing their duties. I ask noble Lords to bear in mind the fact that they are very difficult tasks to fulfil. We take the view that immigration staff need very clear and transparent guidance to ensure that they respect the rights of others. There is no argument about that. The exemption for immigration and nationality functions in Clause 1 will provide Ministers with the framework within which to provide guidance. The latter is very important in this context and I ask noble Lords to reflect on that.

As far as possible the guidance will be published for Parliament and the public to see in line with the Government's commitment to openness and very much in line with our commitment to ensure that we operate our legislation within a framework that combats racism—whether direct or indirect—in all its forms. We must have immigration procedures and practices that will be thoroughly reviewed to ensure that the only discriminatory activity that is necessary and can be justified is covered by clear guidance, approved by Ministers, and that any discriminatory activity which cannot be justified is eliminated. That must be our policy objective.

I hope that noble Lords will accept my explanation. On that basis, I also hope that the noble Lord will accept that we have considered these issues very carefully and, as a result, he will feel able to withdraw his amendment. We believe that this exemption is very important; we believe in the strength of our case; and we believe that it is right to protect the integrity of our immigration system.

Baroness Prashar

My Lords, I do not underestimate the difficulties faced by the Immigration Service—

Lord Bach

My Lords, I am sorry to interrupt the noble Baroness, but I must remind the House that this is the Report stage of the Bill. I believe I am right in saying that after the Minister has responded and sat down, only the mover of the amendment may speak. I apologise, again, for interrupting the noble Baroness.

Lord Lester of Herne Hill

My Lords, I am glad and grateful that the Minister has given his explanation, but I am very concerned about the matter. Like everyone else, I am strongly against any form of dishonesty or evasion of immigration control and in favour of firm, fair and effective immigration control. That is not in issue. I accept that the policy must be based on nationality and country of origin; and, indeed, humanitarian considerations, together with other special grounds. But what worries me—

Lord Bassam of Brighton

My Lords, I am sorry to interrupt the noble Lord, but perhaps he will bear with me for a moment.

I have explained carefully that we intend to consider and publish guidance in this field. Clearly we will have to publish such guidance and, obviously, we will have to take on board comments made by your Lordships and others. I should like to think that, in the guidance, we can tackle the concerns and issues that the noble Lord has quite properly raised on the Floor of the House this afternoon. I make that point because I believe it might help the noble Lord in determining how he wishes to proceed with the amendment.

Lord Lester of Herne Hill

My Lords, guidelines are crucial and they must be transparent. I also believe that they should be subject to parliamentary scrutiny and approval. I add the words "and approval" because I think that this is quite an exceptional situation where Parliament should act as a watchdog over any approval of ethnic discrimination of this kind. However, perhaps may try to explain why I am so concerned.

Everyone in this House understands that the police must not use their stop and search powers on the basis of racist assumptions. But if they cannot stop black people because of their ethnicity, they cannot take a short cut and say, for example, with regard to the Chinese, "We think that there is a great deal of criminality of a particular kind among the Chinese community, so anyone who looks Chinese will be stopped and searched for the very important function of detecting and prosecuting crime". The Home Office has accepted, and we have accepted in this legislation, that that conduct must be unlawful.

It is unconscionable for a public officer to treat one person worse than another in exercising the powers of the state because of that person's ethnicity. There is no difference between ethnicity and a person's colour. If you look Chinese, it does not matter whether it is because you look yellow or have Chinese features; it is to do with characteristics that you cannot help. For the Immigration Service to stop and search in precisely that way on the basis of ethnic stereotyping is, I suggest, equally unacceptable. No guidelines are going to make it acceptable.

The point is that as a matter of principle immigration officers should not be stopping, searching and interviewing people differently because they are black, Chinese or because of any other ethnic reason. I very much hope that between now and Third Reading we will be able to find an appropriate form of words. It would be very sad if the Bill were to leave this House with a very important fundamental principle still being contentious.

I am very grateful for the letter and the explanation I have received, but I still think it is contrary to the very principles of the legislation to allow immigration officers to treat people differently because they look Chinese any more than because they come from the Caribbean and they are black. I see that we are dealing not with colour discrimination but ethnic discrimination. For the reasons I have given, I do not think that this is acceptable. The noble Lord, Lord Cope of Berkeley, very helpfully throughout these debates has taken exactly the same point of principle, distinguishing between ethnicity and nationality. We all see the reasons why the Home Office must distinguish on the basis of nationality, country of origin and humanitarian considerations. I very much hope that we can make progress on this between now and Third Reading to find a form of words which will give the Home Office all the protection it needs without undermining the very principles of the legislation. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

Lord Bassam of Brighton moved Amendment No. 10: Page 3, line 12, leave out from ("or") to end of line 13 and insert ("where such a decision has been made, to any act done for the purpose of making a decision about instituting criminal proceedings."").

The noble Lord said: My Lords, the Government's policy objective with Section 19B of Clause 1 will preserve the role of the criminal court as the sole forum for determining guilt, while keeping the exemption in Section 19B as narrow as possible. I think there is agreement on all sides that this is a proper and necessary objective.

At Committee stage the noble Lord, Lord Lester, brought forward an important amendment to narrow this exemption. I said in Committee that the Government felt that the clause was broader than would be ideal and I indicated that we would wish to bring forward an amendment which would meet our concerns in relation to the decision-making process while narrowing the exemption as much as possible. I believe that the Government's amendment achieves that objective.

It is intended to leave significant but remote acts such as the initial arrest itself and, where appropriate, the gathering and assessment of evidence subject to Section 19B. However, it would continue to provide the protection that we believe is necessary for acts done for the purpose of making a decision about instituting criminal proceedings which may result in any decision not to prosecute.

The Government believe that if the role of the criminal court as the sole forum for determining guilt is to be preserved it is every bit as important to protect such acts from action under Section 19B as it is to protect the decision not to prosecute. As was acknowledged on all sides at Committee stage, there is a balance to be struck between two laudable aims and objectives. On the one hand, there is the need to ensure that individuals have a right to a remedy where discrimination has taken place and, on the other hand, there is the need to ensure that matters of criminal guilt are determined in the criminal court. I believe that this amendment strikes the right balance and on that basis I would commend it to your Lordships. I beg to move.

Lord Lester of Herne Hill

My Lords, we welcome and strongly support this amendment. It tightens the language in a satisfactory manner. It reduces the scope of immunity from racist acts to the minimum necessary to protect the rights of the accused. We therefore support the amendment.

Lord Cope of Berkeley

My Lords, the noble Lord, Lord Lester, is much more able to judge the effect of the amendment than I am. I just wish to probe for a few moments what it actually achieves, because I am not quite clear. The amendment refers to the purpose of making a decision about instituting criminal proceedings, but at least some of the actions of the police in the course of the investigation will be about deciding whether or not an individual committed the offence which is being investigated. They will be gathering evidence, looking at alibis and many other things. They will be asking themselves in the first place: did this man or woman commit the offence? Have we got the right suspect? Secondly, they may well ask themselves: if we have got the right suspect can we bring the case to court successfully and should we institute criminal proceedings?

Many of their actions in interviewing a person, even in arresting somebody, seems to me to be about trying to decide whether they have indeed got the right suspect and whether they have sufficient evidence to institute criminal proceedings. I am not quite clear therefore that any act done for the purposes of making a decision on instituting criminal proceedings does not actually also cover a large part of police investigation. Certainly it would be arguable in many cases in court.

In probing what these things mean and why they are necessary I do not necessarily want to be taken as having gone along with the proposition made here. The noble Lord, Lord Lester, said in connection with the last amendment that I had been concerned about ethnicity and immigration during our Committee stage debates. However, I was actually probing at that stage as to whether or not ethnicity was a necessary consideration in regard to immigration. I was neither supporting nor rejecting that proposition, but one does need to understand the legislation to make sure that the Government are achieving what they wish to achieve. The same principle applies to this amendment.

I do not want the actions of the police to be impeded, as it were, by legislation of this character when they are making a decision about criminal proceedings. However, I am not quite sure whether the actual wording of this amendment achieves that aim. An act done for the purpose of making a decision about instituting criminal proceedings seems to me to include many of the activities of the police.

Lord Bassam of Brighton

My Lords, I am not quite sure what further reassurance I can offer the noble Lord other than to reflect that it is necessary in some cases, for the purposes of gathering and assessing evidence, to conduct matters in the way that we are suggesting, particularly where criminal proceedings are to be instituted, and which may ultimately result in a decision not to prosecute. In such cases the act would be exempt, as it rightly should.

The noble Lord raises an understandable concern, but I think we have addressed that and I felt that we had matched pretty accurately the commitment that was made to the noble Lord, Lord Lester, at Committee stage which achieves our objective in relation to the decision-making process leading up to the taking of a decision about instituting criminal proceedings but without excluding all acts leading to a decision not to prosecute. On that basis—

Lord Cope of Berkeley

My Lords, I do apologise for interrupting the noble Lord, but can he tell me whether it is the Government's wish that the actions of the police in interviewing somebody, in assessing an alibi and so on, should be relieved by Section 19B from the provisions of this Bill, as expressed in that section?

Lord Bassam of Brighton

My Lords, without wishing to be too precise, as I understand it, that is our intention. I hope that that helps the noble Lord.

On Question, amendment agreed to.

[Amendment No. 11 not moved.]

Schedule 1 [Public Authorities]:

Viscount Astor moved Amendment No. 12: Page 10, line 26. at end insert— ("(4) Sub-paragraphs (1) and (2) shall not take effect until the Scottish Parliament have approved the provisions of this Act which cover matters devolved under the Scotland Act 1998.").

The noble Viscount said: My Lords, this amendment concerns Scotland. We debated this matter in Committee. The Bill covers some devolved responsibilities, notably criminal justice. The Government have corresponded with the Scottish Executive and have apparently received the latter's blessing for the changes that are involved. However, the Government have not consulted the Scottish Parliament on the matter. The Minister sent a helpful letter to my noble friend Lord Cope explaining why the Government had not done so. However, I still have some anxieties on this matter.

Concern has been expressed in Scotland that the Immigration and Asylum Bill, as it then was, gave the Home Secretary powers to rehouse asylum seekers in Scotland without consulting the Scottish Parliament. Your Lordships will know that criminal justice and housing constitute devolved responsibilities as regards Scotland. Recently my noble friend Lord Campbell of Croy tabled a Starred Question on the arrangements being made for accommodating asylum seekers in Scotland. In his reply the Minister referred to negotiations that were taking place with regard to the public and private sectors. I understand that these negotiations are being held with local authorities and, presumably, with the Scottish Executive. If housing is a devolved responsibility, how is it that the Scottish Parliament is bypassed in the negotiations just because it is not involved in procuring housing in Scotland?

The Government should clearly state their policy on this matter. During debate on the then Scotland Bill, the noble Lord, Lord Sewel, said that the Westminster Parliament, would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament".—[Official Report, 21/7/98; col. 791.]

It seems to me that we are to a degree legislating with regard to some matters that have been devolved, but the consent of the Scottish Parliament has not been sought. I hope that the Minister will explain the position as regards criminal justice and housing responsibilities. I beg to move.

Lord Lester of Herne Hill

My Lords, we oppose this amendment as being inconsistent with the scheme of devolution to Scotland. Schedule 5 to the Scotland Act 1998 sets out what are called "reserved matters". A reserved matter at Section L2 to Schedule 5, on page 90 of the Act, refers to, Equal opportunities, including the subject-matter of … the Race Relations Act 1976". That means that responsibility for the Race Relations Act 1976 lies within the Parliament of Westminster and not within the Scottish Parliament. There is a good reason for that; namely, the right to equal treatment without racial discrimination is a fundamental civil right of every citizen of the United Kingdom which should be enjoyed in the same way in every part of the kingdom and should not be able to be diluted or varied within the quasi-federal system that Parliament has approved. It would be entirely disruptive of a scheme to implement our international obligations under the various human rights treaties were there to be any difference in that respect. Therefore, there is no point in consulting the Scottish Parliament as a matter of comity on a matter for which the Scottish Parliament cannot exercise legislative powers. For those reasons, we oppose the amendment.

Lord Bassam of Brighton

My Lords, noble Lords will recall that equal opportunities legislation is reserved to the UK Parliament by the Scotland Act 1998. It is therefore for this Parliament to legislate on such matters.

The inclusion of the Scottish Administration in Schedule I to the Bill is intended to ensure that the administration in Scotland is covered by the Bill while treating its legislative powers in the same way as those of the UK Government. The Government have made clear the circumstances in which they will seek the consent of the Scottish Parliament to legislation dealing with devolved matters. These were announced by the noble Lord, Lord Sewel, in this House on 21st July 1998 at col. 791 of Hansard.

Noble Lords may wish to note that the Government have prepared guidance on the operation of the Sewel convention. This guidance was published as Devolution Guidance Note 10 on Friday 21st January and copies are available in the Library. In terms of this guidance, the consent of the Scottish Parliament will be sought where a Bill contains provisions applying to Scotland and which are for devolved purposes, or which alter the legislative competence of the Scottish Parliament or the executive competence of Scottish Ministers. Consent is not required where a Bill relating to reserved matters merely contains provisions which make incidental or consequential changes to Scots law on non-reserved matters.

The consent of the Scottish Parliament to the Race Relations (Amendment) Bill as introduced to this House is not required under the terms of those arrangements. However, as noble Lords would hope and expect, there has been contact at both official and ministerial level on the application of the Bill to devolved Scottish public bodies. This contact will continue throughout the passage of the Bill. I hope that on the basis of that clarification setting out the Government's position on the matter, the noble Viscount will withdraw his amendment. It has been a helpful probing measure and I trust that our response will have satisfied him as regards the way in which we intend to proceed.

Viscount Astor

My Lords, the noble Lord, Lord Lester, uncharacteristically, entirely missed the point of my amendment. I never suggested that anything concerning the main functions of this Bill should be devolved to Scotland. I am well aware that equal opportunities legislation and the Race Relations Act are specifically reserved to Westminster. However, the point I was making, which the Minister has partially answered, is that areas which are covered by this Bill are areas of devolved competence within the framework of criminal justice. I shall not press the matter this evening. However, between now and Third Reading I shall write to the Minister setting out the areas that cause me concern.

The Minister did not address a matter that I specifically referred to; namely, housing. I hope that he will address that matter. The Government have a perfectly reasonable policy of housing certain people in Scotland but how do the negotiations with Scottish local authorities on housing square with the devolved responsibility of the Scottish Parliament as regards housing? That is how I understand the matter, but I stand open to correction if I have misunderstood the position. I hope that the Minister will comment on that point.

Lord Bassam of Brighton

My Lords, perhaps the best course would be to correspond with the noble Viscount on this matter setting out how we see these arrangements working in the light of the Sewel convention.

Viscount Astor

My Lords, I am grateful to the noble Lord for those comments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 13 not moved.]

5.30 p.m.

Lord Bassam of Brighton moved Amendment No. 14: Page 4, line 40. leave Out ("relevant") and insert ("police").

The noble Lord said: My Lords, the purpose of this government amendment is to clarify the drafting of this provision. Paragraph 4(b) of Section 76A in Clause 3 provides for the settlement of claims against a chief officer of police to be paid from the police fund if the settlement is approved by the "authority". This amendment is simply intended to make clear that the "authority" being referred to is the "police authority"—it is a technical amendment—as it is that authority which must approve any settlement paid out of the police fund. I commend this drafting amendment—that is what it is—to the House. I beg to move.

On Question, amendment agreed to.

Lord Cope of Berkeley moved Amendment No. 15: Page 6, line 7, leave out ("other than damages").

The noble Lord said: My Lords, here I venture again into the legal field, with the immediate caveat that I am not a lawyer; I am here to learn as much as to do anything else.

The amendment seeks to address a matter which was of concern to us in Committee, where things got extremely complicated. It addresses the problem of the interaction between criminal proceedings, on the one hand, and civil proceedings for racial discrimination under this Bill, on the other. As the Bill presented to the House now stands, a civil court can award damages but not an injunction in a civil case for racial discrimination unless it is satisfied that there would be no prejudice to the criminal case or, for that matter, to the criminal investigation if the case was still at an earlier stage.

Under the original Bill it seemed that it might also not have been possible for the court in the civil case to grant a declaration saying, for example, that unlawful discrimination had taken place in a particular instance. Subsequently, I understood from the letter of the noble Lord, Lord Bassam, to me of 25th January that a declaration might be considered a finding rather than a remedy and, therefore, not prevented by the clauses as they stand.

The noble Lord, Lord Bassam, has also tabled Amendment No. 16, which is to be discussed with Amendments Nos. 15 and 17, and makes clear that a declaration can be given by a civil court in any case. It gives equivalent wording to cover Scotland where, of course, as usual the wording is slightly different.

Amendment No. 15 returns to a point that we discussed in Committee as to the difference between "damages" and "other remedies". As we have now dealt with the declaration issue under Amendment No. 16, it would seem that the only other remedy available is an injunction of some kind. For the benefit of the non-lawyers present, I should explain that, as I understand it, the important difference is that damages are awarded to compensate someone for a discrimination which has already taken place and which has been declared to be unlawful—they are to remedy something which has happened in the past—whereas an injunction is intended to look to the behaviour of people in the future and to prevent them continuing with the unlawful discrimination or whatever it may be. So an injunction looks to the future whereas damages, as it were, seek to remedy what has happened in the past. That is an important distinction, which I well understand.

But the underlying difficulty seems to remain. In principle we do not want a civil case to prejudice, to get in the way of, a criminal case. I said in Committee—I shall repeat it in case any noble Lords should misunderstand—that I do not take the view that every criminal case is automatically more important or more significant than any civil case can be. Clearly that is not so. There can be criminal offences of a small nature which are not very important, and there can be very serious racial discrimination involved in a civil case. The unlawful discrimination involved in a civil case may be much more important than a small theft or a small criminal offence. None the less, it seems to me that the criminal law should be, as it were, satisfied in general before the civil case comes along.

There are two ways in which this can happen under the Bill. One way is under the later provisions which provide for a stay of civil proceedings. Under those provisions the civil proceedings wait until the criminal proceedings are completed; and then they are resumed as soon as the criminal case is finished and carried through to their conclusion. However, it seems to me that even a declaration—and certainly damages—could affect a criminal case. For example, if the police were found by a civil court to have collected evidence using unlawful discrimination, surely that evidence would be tainted in the criminal case—it might even be inadmissible in the criminal case. That would be quite right if the evidence had been improperly obtained through something that was unlawful from the point of view of the Bill. However, there may be other cases where that was not so but, none the less, the declaration could affect the criminal case.

So far as concerns damages, it could be at least difficult in many cases for the civil court to assess damages if there is a related criminal case still proceeding. It seems to me that the civil court would have to wait until the criminal case was completed to know what the damages should be. The result of the criminal case will affect the decision about the amount of damages.

I am not criticising what the Government are trying to achieve, as I understand it, by these positions. I am trying to tease out, as much as I can, whether the Government have got it right and, for that matter, precisely what they are trying to achieve. As I understand it, with the aid of Amendment No. 16 they seek to achieve that someone will be able to obtain a declaration that there has been unlawful discrimination and able to obtain damages for unlawful discrimination in the past, but they will not be able to obtain an injunction to have the discrimination stopped should it take place in the future.

I am afraid it is still unclear to me why it is necessary to make such a clear distinction between these different remedies and I think it is right to share my doubts with the House. I do so by moving this probing amendment. I beg to move.

The Deputy Speaker (Baroness Turner of Camden)

My Lords, I must inform the House that if Amendment No. 15 is agreed to I cannot call Amendment No. 16 due to pre-emption.

Lord Lester of Herne Hill

My Lords, the more I listen to the noble Lord, Lord Cope of Berkeley, the more I realise that he would have made an excellent lawyer and I would have made a terrible accountant.

In speaking to his amendment and explaining why I am not in favour of it, I hope it will be convenient to the House if I speak also to Amendments Nos. 15 and 17 as they deal with a linked subject matter.

The issues with which the amendments are concerned are how to preserve a fair balance between effective remedies for the victims of race discrimination, on the one hand, and preserving the integrity of criminal proceedings and the presumption of innocence, on the other. Sections (4D) and (4E) of the amended Race Relations Act would give the courts very wide protective powers to ensure that the integrity of criminal proceedings and the presumption of innocence are well safeguarded. I have every confidence in the vigilance of the courts in protecting the presumption of innocence and the integrity of the criminal process.

The objection to Amendments Nos. 15 and 17 is that they would deprive victims unnecessarily of effective remedies for race discrimination and at the same time would disable the Commission for Racial Equality—I am using shorthand in what I am saying—from having the benefit of a declaration or finding, which could be used in cases of persistent discrimination or for formal investigations. Amendment No. 15 would deprive victims of a remedy if there was a possibility of prejudice. I do not consider that an award of damages would cause prejudice given that proceedings can by stayed in any event under new Sections (4D) and (4E).

Amendment No. 16, by contrast, meets the point that was raised in Committee. It allows declarations as well as damages t o be granted, as the noble Lord, Lord Cope of Berkeley, pointed out. That would enhance the CRE's investigative ability and answer the concerns raised in Committee. For those reasons, I oppose Amendment No. 15.

Lord Cope of Berkeley

My Lords, before the noble Lord sits down, I am grateful to him for his flattering comments. My amendment would not deprive someone of a remedy or, for that matter, a declaration, though it might postpone that remedy or whatever.

Lord Lester of Herne Hill

My Lords, I stand corrected. It would deprive the victim of a speedy remedy in circumstances where there would be no necessity for depriving the victim of that remedy and disable the Commission for Racial Equality from being able to use its investigatory and monitoring powers. I stand corrected. The word "speedy" should be added.

Lord Avebury

My Lords, I can see only one problem. New Section (4E) states: Where no decision to institute criminal proceedings has been made, the court shall not grant a stay … unless it is satisfied that the continuance of those proceedings would be contrary to the public interest". But let us suppose that the criminal proceedings are not in contemplation at the beginning of I he proceedings in the civil court, but that half-way through those proceedings the police decide, in consultation with the CPS, that there are grounds for taking criminal proceedings against an individual. In those circumstances, I do not see how new Section (4E) would come into play. The civil court would not have known that the criminal proceedings were in contemplation if that was not the situation until half way through the case was being heard in the civil court. I wonder whether that poses a difficulty for the protection of the criminal proceedings which otherwise is admirably provided by the amendment in question.

Lord Lester of Herne Hill

My Lords, before my noble friend sits down, perhaps I may help him by pointing out that new Section (4D) would apply at any time during the trial of the civil proceedings if in the course of that trial a decision were taken to institute criminal proceedings. New Section (4D) would come into play and the court would exercise its prophylactic powers if it were necessary to do so.

Lord Avebury

My Lords, with his usual wisdom, my noble friend has cleared up that point. I am very satisfied with his explanation.

5.45 p.m.

Lord Bassam of Brighton

My Lords, I can see that, before too long, I shall be out of a job! I am grateful to the noble Lord, Lord Lester, for his telling intervention.

The intention of new Section (4A) of Section 57 of the Act, as inserted by Clause 4 of the Bill, is to ensure as far as possible that courts are satisfied when granting a remedy that the remedy sought would not prejudice the investigative or prosecution process. There is now an understanding in the House that that is the case. This aim has, of course, to be balanced by the need to ensure as far as possible that the claimant in a civil case has access to a remedy where he or she has suffered discrimination.

The debate on this provision at the Committee stage was very useful, with helpful points made on all sides. We all learnt from that debate. The Government have considered those points and agree that, logically, damages and a declaration ought to be treated in the same way under this provision. If there is no need to restrict the court's ability to award damages, as we believe, then nor can there be any need to restrict the court's ability to make a declaration. The Government's amendment would therefore remove the restriction on the court's ability to make a declaration. I should also say that the provision as amended would also not restrict the court's ability to make a finding, since a finding is not a remedy. I do not think that it was ever the Government's intention in this instance to restrict the court's ability to make a finding since the award of damages is predicated on a finding. Nor was it the Government's intention to restrict the ability of the CRE to carry out its proper monitoring and enforcement functions under this legislation.

The Government's main concern in this matter has always been to ensure that injunctive relief is provided only where the court is satisfied that it would not prejudice the investigative or the prosecution process. The Government are proposing to leave unamended the test that should be applied when the court is considering granting injunctive relief, since they continue to believe that this is the proper test to be applied in these circumstances.

The amendment tabled by the noble Lord, Lord Cope, would, we believe, tip the balance in the wrong direction, making it unnecessarily difficult for a court to award a victim of race discrimination the remedies of damages or a declaration. We consider it highly unlikely that the award of damages, or a declaration, would of itself prejudice criminal proceedings or investigations, once a finding of discrimination has been made.

There is a difference in kind between injunctive relief and other remedies. Injunctive relief could require some action to be taken—for example, in relation to evidence that has been gathered, or is in the process of being gathered, that could compromise a criminal investigation or proceeding. Other remedies such as the award of damages could not have that kind of effect.

Where some prejudicial effect could arise from the very finding of discrimination, we are proposing that, rather than prevent a claimant from getting a finding, or any remedy at all, the courts will be able to stay the proceedings until that risk has passed. It is therefore, in our view, unnecessary and undesirable to restrict the claimant's rights to redress in this respect.

On that basis, I hope that the noble Lord, Lord Cope, will feel able to withdraw his amendment and support that of the Government.

Lord Cope of Berkeley

My Lords, I already support the Government in their amendment. As usual, after these debates, I am better informed. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 16: Page 6, line 7, after ("damages") insert ("or (b) a declaration or, in Scotland, a declarator").

On Question, amendment agreed to.

[Amendment No. 17 not moved.]

Lord Bassam of Brighton moved Amendment No. 18: Page 7, leave out lines 3 to 32 and insert— (""(4A) In section 19B proceedings, subsection (2)(b) does not apply in relation to a failure to reply, or a particular reply, if the conditions specified in subsection (4B) are satisfied. (4B) Those conditions are that—

  1. (a) at the time of doing any relevant act, the respondent was carrying out public investigator functions or was a public prosecutor; and
  2. (b) he reasonably believes that a reply or (as the case may be) a different reply would be likely to prejudice any criminal investigation, any decision to institute criminal proceedings or any criminal proceedings.
(4C) For the purposes of subsections (4A) and (4B)— public investigator functions" has the same meaning as in section 57; section 19B proceedings" means proceedings in respect of a claim under section 57 which has arisen by virtue of section 19B."").

The noble Lord said: My Lords, I think it was established at the Committee stage that there is a good deal of common ground here. We are agreed on all sides on the importance of the questionnaire procedure and we are agreed on the need to ensure that the procedure is not used in such a way as to prejudice criminal investigations or proceedings.

At the Committee stage the Government accepted that there was some force in the argument 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 55 of the Act is reasonable where a public investigator or prosecutor believes that a reply may prejudice a criminal investigation or proceedings.

However, as we said then, we feel that it is essential to make clear on the face of the Bill the circumstances in which a Section 65 questionnaire need not be completed by a public investigator or prosecutor. That will be to the benefit of claimants, investigators, prosecutors and the court alike.

The Government's amendment removes the ability of public investigators and prosecutors to apply to the court for an early ruling on whether an adverse inference will be drawn from a refusal to respond to a Section 65 questionnaire. Instead, it makes it clear on the face of the Bill that the court should not draw an adverse inference from the failure of a public prosecutor or public investigator to reply to a Section 65 questionnaire if the respondent reasonably believes that to reply would be likely to prejudice any criminal investigation, any decision to institute criminal proceedings, or any criminal proceedings.

The amendment is consistent with the theme running through Clause 4 of striking 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 weakened or undermined.

For the reasons given, we think it preferable to have clarity on the face of the Bill in this matter. That will benefit claimants as well as investigators and prosecutors. On that basis, I trust that noble Lords will agree to the amendment. I commend it to the House.

Lord Lester of Herne Hill

My Lords, we are very glad that the Government have met us completely on this point. The amendment removes from the Bill an unnecessary procedural provision regarding questionnaires. I am glad that the noble Baroness, Lady Whitaker, who raised this matter previously, is in her place. We now have the happy result of a clear, coherent provision in the Bill. We support the amendment.

On Question, amendment agreed to.

[Amendment No. 19 not moved.]