HL Deb 11 June 2003 vol 649 cc314-37

10.8 p.m.

Lord Filkin

rose to move, That the draft regulations laid before the House on 8th May be approved [20th Report from the Joint Committee].

The noble Lord said: My Lords, on behalf of my noble friend Lord Davies of Oldham, I beg to move that the draft regulations laid before the House on 8th May be approved.

The draft regulations are made under Section 2(2) of the European Communities Act 1972. They implement the UK's obligations to prohibit discrimination on grounds of racial or ethnic origins under Council Directive 2000/43/EC—"the race directive". Their approval is important in enhancing our existing legislation and in ensuring that everyone is able to contribute to the best of their ability to the society in which we all live.

I shall start by briefly setting out the context. The race directive flows from Article 13 of the Treaty of Amsterdam and is being implemented in tandem with the EC Article 13 Employment Directive, which introduces new anti-discrimination legislation in employment in the fields of sexual orientation, religion and age, as well as amending the employment provisions of the Disability Discrimination Act. The UK was a key player in negotiating this legislation, which introduces a common minimum standard of legal protection from discrimination across Europe, and we welcome the result.

The implementation of the two directives has been the subject of extensive discussions with stakeholders over the past three years. Since the adoption of the directives there have been two formal consultation exercises in the UK: first, Towards Equality and Diversity, and, secondly, Equality and Diversity: The Way Ahead. These regulations and those implementing the employment directive have been informed by the comments and detailed suggestions received in submission to those exercises.

There are certain principles that the directive requires the UK to import into domestic legislation, in this case into the Race Relations Act 1976. The principles we are incorporating include widening the definition of indirect discrimination, shifting the burden of proof from complainant to respondent and introducing the concept of genuine occupational requirements.

I should explain here that the amendments we are making extend across virtually all the areas covered by the Race Relations Act. That is: employment, training, education, the provision of goods and services and the provision of housing. The race directive is wider in scope than the employment directive, which covers only employment and vocational training.

The regulations will widen the definition of indirect discrimination so that there will be more circumstances in which claims can be brought. Informal practices will be brought within the scope of the legislation. A new definition of "harassment" as a form of direct discrimination will be introduced. At present, the courts consider harassment to be a form of discrimination, but we have taken the opportunity to formalise the position.

The regulations also shift the burden of proof from complainant to respondent, so the emphasis will be on the employer to prove that he did not discriminate. Up until now the emphasis has been on the person alleging that his employer had discriminated against him proving his case. Now, once an employee has established a prima facie case that would lead a court or tribunal to presume that there has been discrimination, the respondent—normally the employer—will need to establish that the action taken was not discriminatory. If the respondent fails to do this, the court or tribunal will rule against him. That will only come into effect once the individual has made a convincing case. A respondent would not have to disprove an accusation of discrimination by a complainant who has no plausible evidence to back up his or her claim.

The regulations will introduce the concept of genuine occupational requirements. A genuine occupational requirement is when a job can genuinely not be done appropriately unless it is done by a particular kind of person. The genuine occupational requirement provision applies a more generic approach, leaving it for a tribunal to determine whether there is a requirement. Unless there is a genuine occupational requirement, discrimination in employment will be considered unlawful.

These amendments will, in broad terms, also apply in respect of the equality strands covered by the employment directive.

The race directive requires that we remove exceptions in the Race Relations Act which are contrary to the principle of equal treatment. That involves specific changes to the Race Relations Act and increases an individual's protection from race discrimination. At present, partnerships of five or fewer partners, landlords who dispose of and manage small dwellings, charities in their role as employers, UK employers and training providers who recruit from abroad, and private household employers are exempt from the Race Relations Act provisions.

These enhancements, and the others we are making, widen the areas in which claims can be brought, making it easier for individuals to bring claims and to demonstrate that race discrimination has occurred. The regulations will apply on the grounds covered by the directive—discrimination on the grounds of race, ethnic or national origins.

As the directive, to a large extent, mirrors the Race Relations Act, the changes we are making to the Act could be described as minor and technical. For all that, they will be important. Their net effect will be that our existing legislation will be enhanced and that individuals will have improved access to justice.

General compliance costs to businesses linked to the implementation of the race directive should be minimal, as many businesses will already have in place policies and systems that are in line with the directive's requirements.

The Government are pleased to take forward these regulations, which will further strengthen the Race Relations Act and follow hard on the heels of the Race Relations (Amendment) Act, which is making a real difference to racial equality.

The UK leads the way in respect of protection from racial discrimination and implementing the directive further enhances that protection. I am pleased to move these amendments, which are an important step in achieving our aim. I commend the regulations to the House.

Moved, That the draft regulations laid before the House on 8th May be approved [20th Report from the Joint Committee].—(Lord Filkin.)

Baroness Anelay of St Johns

My Lords, I begin by thanking the Minister for his explanations. It is right that I should put on record an observation. We begin to debate a significant piece of secondary legislation after the hour of ten o'clock, the time at which, under the new rules agreed by the House, business is expected to conclude. Managers will obviously have to consider that in the future; certainly, Members of the House will do so when considering the review of proceedings. The principle alleged to be behind the regulations is of course one that we would all accept—how could we not? As the Explanatory Memorandum states at paragraph 4: The Directive lays down a principle of equal treatment between persons, irrespective of racial, ethnic or national origins". The problem arises as soon as one considers the manner in which the Government seek to give effect to that principle by adopting a process of harmonisation.

Effectively, the regulations reverse the burden of proof in race relations employment tribunal cases—and do so by secondary legislation. That is unacceptable. Instead of an employee having to prove that he or she was treated in a racist manner, employers will in future have to prove that they did not act in such a way.

Paragraph 41, referring to the burden of proof, states: the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act". Indeed, the burden of proof will be reversed not only for new cases brought after the regulations take effect but for cases that have already started.

The regulatory impact assessment states that the UK already has extensive legislation prohibiting discrimination on the grounds of racial or ethnic origin. The Minister also referred to that. The impact assessment then states that, therefore, compliance here is more about fine-tuning existing legislation than introducing new provisions. That is the first time that I have heard something as significant as reversing the burden of proof referred to as fine-tuning. I hope that it is the last. We object to the reversal of the burden of proof and therefore do not support the making of the regulations.

However, I have some questions on the content of the regulations, which are strictly, as one would expect from me, the observations of a layman. I am delighted to see the noble Lord, Lord Lester of Herne Hill, on the Liberal Democrat Front Bench. He will bring a more educated, lawyer's approach to the matter. It is tempting to ask a legion of questions, because so many parts of the regulations are likely to lead to confusion and a lack of transparency, but at this late hour, I shall restrict myself to six issues.

First, paragraph 3 inserts a new Section 1A into the 1976 Act that contains the new definition of indirect discrimination. Can the Minister explain how the word "particular" in paragraph (a) should be defined? The regulations state: Discrimination occurs if one applies a practice that puts or would put a person at a particular disadvantage when compared with other persons". How is that particular disadvantage—as opposed to a disadvantage—to be measured?

Secondly, paragraph (b) adds that the employer has to show that the practice that he has adopted is a proportionate means of achieving a legitimate aim. How will the proportionality be measured? Against what or whose standard?

My third question refers to the new concept introduced in paragraph 7, to which the Minister referred: the exception for general occupational requirement. Can the Minister give the House an example of the types of employment that the Government have in mind? I notice that it is not acceptable for there simply to be an occupational requirement that the employee should be of a particular race or of particular ethnic or national origin. Other restrictions also apply to the employer. He or she must be able to show that it is proportionate to apply the exemption in the particular case and that it is not reasonable for the employer to be satisfied that the applicant satisfies the occupational requirement.

All that is convoluted and seems fraught with uncertainty and difficulty. How can an employer demonstrate what is proportionate and that it is not reasonable for him or her to be satisfied in the circumstances? The obscurity gets worse when one reads the regulatory impact assessment. That makes the point at paragraph 11.1 that charities will be hit by the provision for the first time. The Government acknowledge that, in effect, that will prevent charities that target support to particular disadvantaged racial groups from being able to recruit staff from the same group to act as support workers. I find that appalling.

The assessment then makes an astonishing statement. It states: One way to allow charities to continue to select staff on this basis would be to allow them to rely on genuine occupational requirements when recruiting staff for particular posts". "One way"; then why do the regulations not make that crystal clear? Why should charities have to depend upon fiddling the interpretation of the new regulations to clear themselves in cases brought against them? Would it not be better to have clear legislation that means that cases would not be brought against them in the first place?

My fourth question refers to the requirement for member states to ensure that procedures are available for individuals to enforce the directive's obligations. As the Explanatory Memorandum tells us, the 1976 Act already contains comprehensive provisions allowing for the enforcement of the rights of individuals. However, it goes on to point out, and I use the Minister's word, that these procedures are being "enhanced" by the regulation that requires respondents to respond to a questionnaire served by a complainant within eight weeks. Failure to respond within that time or the provision of an equivocal response may lead a court or tribunal to infer that discrimination has occurred.

I note that that is transposed into the regulations at paragraph 47, headed, "Period within which respondent must reply". Why have the Government decided to enhance the procedures and why did they light upon eight weeks as the magic moment? Is that eight-week deadline applied across the rest of our colleagues in Europe? What is their method of enforcing that part of the directive?

Fifthly, I note that the implementation of the regulations will be brought to the notice of the public by guidance. When? I understand that the regulations go live on 19th July.

Finally, I note that the regulatory impact assessment takes a complacent attitude—I can think of no other way to describe it—to the costs of the likely changes by stating repeatedly that since most employers have had to follow the Race Relations Act 1976 for so long, making one more leap will not give them too much trouble. That of course will be a matter that can only be proved once the regulations are imposed. But even the regulatory impact assessment acknowledges that partnerships of fewer than six people will feel the draught. They are brought into the system for the first time. The regulatory impact assessment makes the prediction that even if only 0.29 per cent of newly covered partnerships have to defend a case at employment tribunal this will cost them £3.5 million. I suspect that smaller partnerships will argue that the cost to them will in practice be proportionately higher since it is even more difficult for them to cope with the bureaucracy involved in tribunal cases.

The regulatory impact assessment also acknowledges that the smaller partnerships are likely to have to bear the brunt of a further £3.5 million for compliance costs. The regulatory impact assessment states at paragraph 2.2 that the Government are taking a "light touch" approach to the implementation of the directive. Heaven preserve us from a heavier touch. I do not support the making of the regulations.

10.23 p.m.

Lord Lester of Herne Hill

My Lords, this morning the Government announced the commissioning of a review into the health and safety hazards of "nanotechnology"—the science of the very small. Although I do not share at all the criticisms that have just been made by the noble Baroness, Lady Anelay of St Johns, from the Conservative Front Bench, these flawed regulations are an example of politically-driven nanotechnology as applied by the Government to equality legislation, and of the hazards that they will create in the effective enjoyment of the fundamental right to equal treatment without unjustifiable discrimination.

One hazard of nanotechnology is known as "grey goo"—an amorphous and unsightly mess. That is not a bad description of the regulations before us, and what we will have in the other equality regulations next week and beyond. I have a particular interest in the subject because I had the privilege of assisting Lord Jenkins of Hillhead as Home Secretary in developing policy in what became the Race Relations Act 1976 and Sex Discrimination Act 1975. I also introduced the Equality Bill that was recently approved by this House and has received massive support among more than 220 Members of the other place.

The Government are to be commended for having supported the making of the equality directives under Article 13 of the Treaty on European Union. I do not share the root and branch attack on the regulations that we have just heard. There is, as we approach night, no time to consider all of the examples. I therefore take just one example to stand for all—the burden of proof issue. Article 8 of the directive is quite clear about the burden of proof. It does not contemplate a reversal of the burden of proof; it contemplates a more evenhanded sharing of the burden of proof. That is exactly what Regulation 41 does. For good measure, that is what the courts for years have essentially been saying should happen in gender discrimination cases and in race discrimination cases under existing legislation. It is also what has been done for women and men who have been victims of sex discrimination as well.

So I do not think that there is anything in that kind of criticism, in just the same way as some of the other criticisms that have been made of these regulations could equally be made, if they were correct, as regards gender discrimination legislation and disability discrimination. I would be astonished if the Conservative Front Bench would dare to attack gender and disability discrimination in the same vehement terms that we have heard today.

Baroness Anelay of St Johns

My Lords, I am being taken to task by the noble Lord, Lord Lester, but I am not attacking any concept of equality—I made that clear in my opening remarks. I am attacking the way in which the Government are going about it. My assault is upon them, not upon equality.

Lord Lester of Herne Hill

My Lords, I had thought that the attack was on the particular proposals in these regulations. I am saying that those proposals are in well-established discrimination legislation dealing not only with colour and race but also with other types of unjustifiable discrimination. There is nothing very novel about any of this. Indeed, I will be criticising the regulations from an entirely different perspective; namely, that the Government are. I think, to be criticised for having decided to implement the directives not by coherent, consistent, accessible, joined-up and user-friendly primary legislation, but instead to proceed by way of piecemeal and disjointed delegated legislation—that is to say, by means of statutory instruments made under Section 2 of the European Communities Act 1972: a "nanocratic" decision that will disfigure the existing body of anti-discrimination legislation.

That nanocratic decision was taken last year for short-term reasons of political convenience. It means that the Government do not have to consider how best to remake the existing tangled web of antidiscrimination legislation, a pressing need so long signalled by the equality agencies and by independent experts. It means that parliamentary time is used instead to enact the endless flow of criminal justice and other Bills produced by the Home Office law factory. Incidentally, I have still received no answer to a Parliamentary Question tabled on 9th May seeking to discover the extent to which those consulted argued for the use of primary and not secondary legislation. I very much hope to receive that reply before next Tuesday when we deal with the last batch of these equality regulations.

The defects in that misguided approach are exemplified in these regulations as the Commission for Racial Equality—I am so glad that the noble Lord, Lord Ouseley, will be speaking as a distinguished and powerful former chair of that body, the public guardian of the Race Relations Act 1976—has pointed out. I have written to the Minister giving notice of some of my main concerns so that he is able to deal with them in his reply this evening rather than in correspondence at a later stage. This is our only chance as legislators to probe the Government's intentions on these important matters before the regulations become part of the law of the land.

By using Section 2 of the 1972 Act, the Government and Parliament are narrowly circumscribed in what can be done to amend the Race Relations Act. The powers conferred by Section 2 go no further than what is required to transpose the directive into our internal law. That is the main source of the incoherent and inconsistent amending regulations that we are asked this evening to approve. Perhaps I may give just one example—the burden of proof. How can it make any sense whatever to have a different burden of proof in employment discrimination cases than in education or housing discrimination cases on the basis of colour or race? It makes no sense whatever. However, it is part of the general pattern of legislating in this area, without any respect for internal coherence.

In my letter to the noble Lord, Lord Filkin, I raised the following as particular concerns. First, the Race Relations Act 1976 covers discrimination on the grounds of colour, race, ethnic or national origins and, with the exception of immigration functions, nationality. The new definitions of indirect discrimination and harassment, the shift in the burden of proof and the new exception for genuine occupational requirement in the regulations will apply only to discrimination on the ground of race, ethnic or national origins, and not colour or nationality. How can the Government avoid that resulting in confusion and potential injustice to applicants who may not know whether they are being discriminated against by reason of their ethnic origin or their colour?

Surely the CRE is right in stating that it is, illogical to implement the principle of equal treatment by providing for greater protection from discrimination on grounds of race and ethnic or national origin but not colour. The principal trigger for racially discriminatory behaviour is frequently colour: discriminators will seldom know the victim's ethnic or national origin and sometimes not the racial group but 'colour' is a visibly different characteristic". The CRE is surely also right in stating that the regulations will, create more complex and confusing legislation for individuals, employers, businesses and the public sector and the new public duty to promote racial equality. In particular, the … Regulations … will create a two-tiered structure within the 1976 Act". Does the Minister agree? If not, why not?

Secondly, the new provisions, such as the new definition of harassment, the shift in the burden of proof, and so on, will not apply to many functions of public authorities—for example, police functions, such as stop and search, arrest and detention, functions of the immigration service and the enforcement or regulatory functions of local authorities. I have asked the noble Lord whether the Government accept that this will create widespread confusion among those carrying out public functions, with the result that they will not know which standards apply to which functions. How will such confusion be avoided in practice?

Does the Minister agree with the CRE's assessment that the regulations, will inevitably result in increased litigation to clarify the law with financial consequences for businesses, complaint aid organizations, including the CRE, and the courts and tribunals"? I certainly agree with that view. If the Minister disagrees, I should be grateful if he would explain why this is not likely to be the undesirable practical outcome.

Thirdly, the regulations do not apply to many of the functions of public authorities imported into the Race Relations Act 1976 by the Race Relations (Amendment) Act 2000. That is another example of what will be a two-tiered structure. Does that not inevitably mean that the resulting complexity in the legal framework will make it very difficult for public authorities to comply with their new statutory duty under the recently amended Race Relations Act 1976? Again, if the noble Lord disagrees, I should be grateful if he would explain why this is not the likely, and undesirable practical outcome?

Fourthly, the fact that these provisions have been implemented through regulations rather than primary legislation will inevitably lead to an even more complex and opaque legal framework. Given the time-scale involved, I appreciate that primary legislation cannot now be introduced in time to implement the directive. But will the Government give serious consideration to the proposal that the regulations should be introduced as temporary provisions prior to the introduction of a single Equality Bill, or a new, modernised Race Relations Act? That would address the differences between the directive and existing primary legislation and provide equal protection on the grounds of colour, race, nationality or ethnic or national origin, and in respect of all public functions. If not, when do the Government intend at last to grasp the nettle and remake the anti-discrimination legislation enacted more than a quarter century ago?

Eighty years ago, FM Cornford published his well-known guide for the young academic politician, in which he examined the argument that, the Time is not ripe". He explained: The principle of unripe time is that people should not do at the present moment what they think right at that moment, because the moment at which they think it right has not yet arrived".

It saddens me that the Government are so timorous and lacking in ambition in this important area. It dismays me, frankly, that they are still so far from fulfilling their bold 1997 election manifesto promise to tackle unjustifiable discrimination "wherever it exists". I look forward to the Minister's considered and full response this evening to the concerns that I raised in advance. I hope against hope and experience for some assurance that the Government will at last accept that the time is ripe for coherent, comprehensive, accessible equality legislation that can be enjoyed in practice to be introduced and enacted.

Lord Monson

My Lords, I do not want to blame the noble Lord, Lord Filkin, who is in no way personally responsible, but, as the noble Baroness, Lady Anelay, said somewhat more politely, it is pretty deplorable that regulations as important and controversial as these should not be considered until well after 10 p.m. At least yesterday's disability regulations of a similar order of importance came before the House at about half past three.

What is so disgraceful about all these EU regulations we are discussing this week and next is, as the noble Baroness said, the enforced abandonment of our ancient tradition of "innocent until proven guilty". The accused will now be deemed guilty, albeit guilty in the civil rather than criminal sense, unless he or she can prove otherwise.

Whatever the Government may say in public, I expect that they must agree with me in their hearts. Otherwise, they would have automatically introduced this radical change off their own bat some years ago without waiting for the EU to bully them into doing so. After all, the Government have been in power for more than six years.

Incidentally, what demand has there been from the ordinary citizens of the EU for the introduction of this unfair practice? Virtually none, I suspect, as I am sure a referendum or public opinion poll across the EU would reveal. As with so many "euro-laws", as one might describe them, the whole thing is driven by a small group of no doubt sincere zealots. Perhaps that is a tautology as zealots are by definition sincere.

The whole of page 3 of last Sunday's Sunday Telegraph was devoted to an expos? of a Nigerian gentleman who claimed that he had been discriminated against 72 times. He lost 70 cases and won a partial victory in only two, but his actions have so far cost businesses, hospitals, local government and the police more than £0.5 million in legal and other costs. One can predict that if these regulations become law, such cases will mushroom, spurred on by lawyers who encourage grievances.

I have no personal axe to grind, but why are partnerships included—that is, tightening up the law—as partnerships have nothing to do with any employer/employee relationship? Do similar laws in other EU countries extend—

Lord Lester of Herne Hill

My Lords, is the noble Lord aware that partnerships have been covered by anti-discrimination law for more than a quarter of a century; in the Sex Discrimination Act 1975 and in the Race Relations Act 1976 as well as in the Northern Ireland legislation?

Lord Monson

My Lords, yes, I am well aware of that and I shall turn to that in a moment. As far as I know, the EU directive refers only to employment laws. Therefore, why are these regulations being used as an excuse to extend the power to impose further restrictions upon partnerships? Do similar laws in other EU countries extend to partnerships, or is this another example of gold-plating by Her Majesty's Government?

It was, after all, a previous Labour government—and this answers the noble Lord, Lord Lester of Herne Hill—more Left-wing than the current Government, which deliberately excluded small partnerships of between two and five individuals in Section 10 of the Race Relations Act 1976. How sensible they were. After all, there are many all-Jewish partnerships. One often comes across firms of solicitors with names such as Goldman, Levy, Katz and Greenberg. Why on earth not? Why should they not form all-Jewish partnerships? I dare say that there are a number of all-Bengali or all-Gujarati partnerships. Why on earth not? But it looks as if they will now be outlawed.

I finish with a story I heard first-hand less than three weeks ago. I happened unexpectedly to meet at lunch a couple who said that they were thinking of emigrating. As they were in their late forties or early fifties, and I knew that they still had dependent families, I tentatively inquired why, upon which they revealed that they owned a small science-based firm which normally employed only graduates, such being the skilled technical nature of the work required. But having social consciences—they did not use that expression, but that is what I deduced from their general demeanour—they one day took on a young lady of Caribbean origin who had no degree, but who they thought was bright and might fit in and learn reasonably quickly.

Initially the young lady seemed to do very well, so they promoted her. It was a total disaster. She was simply not up to the job. So, not wanting to disappoint her or hurt her feelings, they created a somewhat invented job for her, at the same higher salary as she was receiving post-promotion. Notwithstanding that she suffered no financial loss, the girl, encouraged no doubt by grievance-fostering lawyers, claimed that her pride had been hurt by the sideways move and launched an action based on alleged racial discrimination.

Although the couple think they have a good chance of eventually winning, such has been the emotional and financial cost of fighting the case that they are thinking seriously of winding up their business in Britain and starting up somewhere abroad, to the great disbenefit of this country. Once the burden of proof has shifted, we may expect more of this sort of thing.

10.45 p.m.

Lord Ouseley

My Lords, for the best part of four decades we have led Europe in the way in which we have tackled race relations, with the introduction of legislation, and our enforcement machinery which is the envy of many states across Europe. It is a great tribute to the noble Lord, Lord Lester of Herne Hill, that he was an architect of that legislation, supporting Lord Jenkins of Hillhead when the latter was Home Secretary.

Britain's role has been honourable in helping to support the development of the European directive, which is important in that it provides protection for residents right across Europe in a consistent way. In many cases our own citizens have the same level of protection in other parts of Europe, and the directive will help to give at least a greater degree of consistency of protection for those who may be the victims of discrimination.

Back in 1965 we ended colour discrimination. At that time signs were very evident all over Britain saying "Rooms to let"—or "Job vacancies"—"No blacks, no coloured, no Irish." It seems to me that in 2003, with these regulations, we are going backwards. Despite what the Minister said about the Government's widespread consultations on the regulations, it would appear that no one listened to what people were saying.

In bringing forward secondary legislation at this time of night, the Government cannot be forgiven for wasting the three years that they have had to prepare and introduce primary legislation to strengthen our existing legislation. It is very disappointing that they have chosen to submit weaker and confusing regulations.

The Government have known exactly what the negotiated provisions mean, but instead of meeting the spirit of the directive—the establishment of the principle of equal treatment for all—they now purport to follow the directive to the letter by adopting a minimal approach to implementation. Not only will this approach create an unworkable law, it also fails fully to comply with the directive provisions. Instead of adopting fully the wording and definitions of the directive, the regulations change phrases arbitrarily, leave out crucial bits and thus do not comply with the spirit as well as the letter of the directive.

Despite the Government's commitment to bringing forward legislation that is clear, concise, comprehensive, effective and simple to interpret and to enforce, these regulations will unnecessarily produce an increasingly complex and complicated framework which will be confusing, difficult to understand and therefore difficult to use. This means that they will achieve just the opposite of what the Equality Bill promoted by the noble Lord, Lord Lester, intended: a simplification of our equality laws which was welcomed by Members of this House.

The regulations will create a two-tier framework with two grounds of discrimination and key areas of material scope excluded from the revisions. With regard to the material scope and the omissions, the key areas of immigration and policing—that is, the enforcement and regulatory functions—are not included in the regulations, which means that in effect the Race Relations Act will be split into two.

The recently enacted Race Relations (Amendment) Act 2000 remedied the defect that existed for over 25 years by incorporating those functions within our existing legislation. But in so far as these regulations apply, they will now be excluded. That is bizarre and inexplicable. Are we to approve regulations that will permit immigration and police services to escape taking responsibility for the harassment of people simply because of their race? Surely this anomaly must be addressed.

That brings me to the grounds of discrimination. Race as well as ethnic origin are both included in the regulations, but colour and nationality are omitted. The exclusion of colour seems entirely arbitrary, as the directive's stated purpose of combating racism and xenophobia, along with its broad reference to race and ethnic origin, very likely encompasses colour. The Government did choose to include national origin as falling under the directive's definition of race and ethnic origin, so it is unclear on what basis colour can be deliberately excluded, especially when it forms an integral part of our own existing definitions. That is arbitrary, irrational, indefensible and—dare I say it?—racist.

The regulations will introduce an equality hierarchy if they remain in their present form. There is the distinct likelihood of increased litigation to clarify the law, with financial consequences for businesses, for the Commission for Racial Equality and for trade unions which provide legal assistance to victims. There is a lack of adequate sanctions. No attempt has been made to ensure that sanctions are effective, proportionate or dissuasive, as required by the directive. For example, tribunals could be given the power to order remedies to correct a wrong that has been perpetrated.

Then there is the possible non-compliance of the race regulations with the race directive. Taking the indirect discrimination provisions, the definition in the regulations departs from the wording of the directive at crucial points. One effect is that the anticipatory challenges to an indirectly discriminatory practice will not be possible. Rather, action can be taken only once an individual victim has already suffered a disadvantage. The regulations require a person to be an actual victim, whereas the directive permits cases to be brought even before someone experiences an individual disadvantage. In the absence of a directly affected victim, it will not be possible to challenge an indirectly discriminatory policy, criterion or practice.

The second point on indirect discrimination is that indirectly discriminatory practices will still be possible when deemed "appropriate" and "legitimate", whereas the directive requires additional tests of "objective justification" and "necessary" aims. Surely this cannot be acceptable and is contrary to the principle and the letter of the directive.

As regards the issue of genuine occupational requirements, the directive would replace the list of employment exemptions in the existing Race Relations Act with a strictly defined general exemption which must show evidence of being legitimate and proportionate. The regulations fail to adopt the full strict definition of the exemption by omitting that the objective of such an exemption must be "legitimate". Moreover, the regulations add "dismissal" to the scope of this exemption. That amounts to a violation of the directive's non-regression clause as there are currently no exemptions for discrimination in dismissal procedures in the Race Relations Act.

I move on to harassment. The regulations separate harassment from discrimination whereas the directive clearly says that harassment is a form of discrimination. This can have negative consequences for the victims who go through a continuum of harassment and discrimination and who encounter time limits when lodging complaints.

The provision on harassment introduces a "reasonable person" test. What is that? It is that harassment will be acknowledged as such only if it can "reasonably be considered" to have adverse effects. Such a test effectively perpetuates prejudice and indirect discrimination because a "reasonable perspective" is likely to refer to a spurious "average", the traditional standard which is characteristic of the dominant majority population, that of white middle-aged males whose presence, incidentally, still dominates our tribunals and courts. Inevitably, such perceptions differ from those of people who are often most affected by harassment.

These regulations defy belief when set alongside our track record of leading Europe in outlawing racial and other forms of unjustifiable discrimination. It is clearly incumbent on the Minister to explain what representations have been made during the extensive consultations. What representations have been made by the Commission for Racial Equality, for instance, and why have these been rejected?

These regulations are too deficient to be approved. The Government should look at them again before taking them any further.

The Earl of Onslow

My Lords, I take exception to something which the noble Lord, Lord Lester of Herne Hill, said. The exception I take is to the accusation that we on this side of the House would not have objected to the measures in these regulations had this been discrimination in any other form. As they have been shown to be flawed, not only by the noble Lord, Lord Lester, but by the noble Lord, Lord Ouseley, it would be an insult to our intelligence to suggest that if similarly flawed regulations were introduced on sex discrimination or other discrimination we would not have objected. I certainly would have done so on exactly the same grounds as I object to these regulations.

However, one must always give a little and take a little. I agree entirely with the noble Lord, Lord Lester, on the need for genuine, all-purpose equality legislation. It makes much more sense that there should be a general right of equality, a general right not to be discriminated against and a new Bill. I completely agree with the noble Lord, Lord Ouseley, and with the noble Lord, Lord Lester, that these regulations are flawed in themselves. They are over-complicated and they should not have been introduced at this time of night. These matters should be dealt with by primary legislation.

I suggest to your Lordships that this country has some of the best race relations in all Europe. Try being a Turk in Hamburg; try being an Algerian in Marseilles or in some of the scruffier parts of Paris. I was driving home yesterday fairly early. Some schoolchildren were leaving a school in Wandsworth. It was a racially mixed school. It was a pleasure to see the children walking along, talking to each other. with no form of discrimination in their bones at all. That is the level which race relations in this country have reached.

There are cases of discrimination and they are not necessarily white on black or white on brown. One of my favourite fishmongers is in Chinatown. There was a notice outside saying "New sales assistant required: Mandarin essential". Many school leavers from inner London schools could get a perfectly decent job in an English fishmonger and, with a little bit of training, would be able to sell cod. But those who speak Mandarin would, I assume, come from only one racial minority.

It is interesting that there is a society of black lawyers. If there was a society of white lawyers the noble Lords, Lord Ouseley and Lord Lester, would he jumping about with rage like peas in a banshee bucket—justifiably so. There is a society of black policemen. If that is not racist, I do not know what is. It strikes me as being racist.

Having said all that, the English—I use the word advisedly—I hope, are sufficiently tolerant and sensible to say that, even though it is racist, it is not unreasonable to have a society of black lawyers because it is trying to produce fairness in this world.

I am lucky enough to go sailing at Cowes. Your Lordships may ask what race relations have to do with Cowes. I went onto a boat called "Drumbeat", which had been owned by Lord Beaverbrook —Maxwell Aitken—and was now owned by an ex-sergeant in the Royal Engineers who was half-Jewish and half-Ghanaian and had made a fortune out of property. He had a crew of New Zealand rugby players to make sure that his racing was successful. That situation at one end of the social scale and the school at Wandsworth at the other shows how successful is the general ease of race relations in this country.

Of course we must not be complacent—it can all go wrong—but I am told that paragraph 41 of these regulations—I have taken a certain amount of advice is the first legislation to change the burden of proof in the way that it does, certainly by regulation. The people I asked—one was a judge and the other was a distinguished legal correspondent—had not been briefed, but neither of them could think of a case involving this kind of reversal of the burden proof.

I was always told that it was scientifically impossible to prove a negative.

Lord Lester of Herne Hill

My Lords, in the light of the speech of the noble Earl, perhaps I may clarify what I said. I am not suggesting that the Conservative Opposition has double standards and is not attacking disability and sex discrimination legislation but only race discrimination legislation. I was seeking to say—the noble Earl's point about the burden of proof illustrates this—that the way in which the attack has been mounted today could equally be made on the sex discrimination and disability discrimination regulations, but there has been no similar attack by the Conservative Party upon them.

As to his point about the burden of proof, paragraph 41 of the regulations simply states that if the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent has acted unlawfully—that is, something like a prima facie case—then the burden shifts to the respondent to show that the act was not done on unlawful grounds.

That is a well-established concept in English law of the shifting of the burden. It has been applied in sex discrimination legislation under European law and it is being applied here under race legislation. I do not understand the Conservative Opposition to be attacking it in relation to sex equality legislation but only in respect of this legislation. If they attack it on the grounds of both they will be equally wrong, but they will be consistent.

The Earl of Onslow

My Lords, the reason that I did not tack that on is that I did not have the faintest idea that it was being introduced on the other issue. I read about the matter, thought that it was wrong and still think that it is wrong. I am still not convinced that turning the burden of proof upside down by regulation is not a "first" and it is a wrong "first".

The Government have a tendency to tyranny. On Monday, we shall hear about hearsay evidence, the reduction of trial by jury and all kinds of nasty things which I, as an old-fashioned person who likes the concept of the protection of English law for subjects of the Crown, find deeply offensive. Her Majesty's present advisers are too prone to that tendency.

That is why I dislike the measure. I do not think that this reversal of proof is a measure which any government should be proud to introduce. I agree that we should have proper equality legislation. To demonstrate how difficult it can be to define what is an ethnic minority, perhaps I may say that my great-great-great-grandmother was a Negro slave in Jamaica; and my great-great-aunt was a daughter of Tullachdan of Aude. When my great-aunt was vicereine of India, they met. She saw him. He said, "My name is Gardner", to which she said, "We must be cousins".

I am deeply disturbed by these regulations. It is an achievement for the Government to have united against them the noble Lord, Lord Lester, the noble Baroness, Lady Anelay, the noble Lord, Lord Monson, myself and the noble Lord, Lord Ouseley. It means that the Government are not thinking and are introducing the provision in a sloppy and haphazard way.

11.1 p.m.

Lord Filkin

My Lords, the first of the questions by the noble Baroness, Lady Anelay, was on the burden of proof. The burden of proof does not shift to the respondent unless and until the complainant proves facts from which the tribunal could conclude, in the absence of an adequate explanation from the respondent, that the complainant has been unlawfully discriminated against. In simple language, if it appears on the facts of the case put forward that there is a case to answer, there is an expectation and a responsibility on the person against whom the complaint is made to answer that complaint if they wish to defend themselves from the presumption that something that should not have happened has happened. If there is no prima facie evidence of race discrimination, the tribunal will dismiss the case as at present. There is no question of a respondent having to prove an unsubstantiated accusation.

The situation is not new. Employment tribunals have been applying the revised rules on the burden of proof in employment cases under the Sex Discrimination Act 1975 since October 2001. Therefore, tribunals should be well acquainted with the principle involved. We see nothing that is fundamentally wrong with this. The title "reverse burden of proof' perhaps over-dramatises in ways that may slightly mislead.

The noble Baroness, Lady Anelay, also asked about time limits. The time limit of eight weeks for a respondent to reply to the complainant is in part a question of complying with the directive. It is the directive's requirement to provide an appropriate redress to complainants. It is consistent with the approach taken in respect of the regulations implementing the employment directive.

The noble Baroness also asked about "particular disadvantage". The phrase reflects the wording of the directive. It means that the complainant must show that the provision criteria or practice concerned causes a significant disadvantage to his or her racial group which would not be suffered by persons of comparable racial or ethnic groups.

On proportionality, it has to be shown that if the provision criteria or practice cause a disadvantage, the application of the provision criteria or practice needs to be proportionate to the aim that it pursues. That means a judgment of whether it is appropriate to achieve the aim and necessary to do so. That includes consideration of whether there are less restrictive means of achieving that aim. I hope that that explanation will seem a statement of virtual common sense, rather than anything more contentious.

The noble Baroness, Lady Anelay, also asked whether the provision set down obscure and incomprehensible tests—on proportionate application, for example. Genuine occupation requirement is a narrow exception and it is important that it be drafted in the strictest terms to show that the requirement is applied proportionately. In order to clarify the application provision, employers are given the choice of showing that the requirement is not in fact satisfied or, where that is not clear cut, to show that it is reasonable for them to consider that it is not satisfied. That will assist employers and tribunals in the practical application of the legislation.

On the impact on business, we have sought to implement this directive and the employment directive so that they have an eye to each other. We recognise that employers will be under a duty to respond to both directives. Therefore—although it has met some criticism tonight—we have sought to take in parallel the processes by which they would be implemented, trying to ensure a joined-up approach as far as possible, to minimise unnecessary regulatory burdens on business. However, it is my experience that most businesses in Britain take a positive approach to the importance of race equality measures and legislation and are alive to the business case for so doing.

As a result of the changes by the directive, charities will be subject to the same employment provisions in the Race Relations Act as other employers, in relation to discrimination or harassment on grounds of race or ethnic or national origins. That change has been welcomed, because it will make the approach to employment in the Race Relations Act more consistent. That will prevent charities that target support to particular disadvantaged racial groups from being able to recruit staff from a particular racial group, unless they can demonstrate that there is a genuine occupational requirement. Charities will be able to rely on genuine occupational requirements when recruiting staff to undertake certain posts or roles where the post holder needs to be of a particular background. They will continue to be able to rely on the existing exemption to the provisions of the Race Relations Act when recruiting staff who need to be of a particular nationality, as grounds of nationality are not covered by the changes.

The noble Baroness, Lady Anelay, asked when the guidance would be produced. It is our intent to produce a leaflet and guidance by the end of June so that advice is available to employers or others in that respect.

It is with regret that I find that I have not completely satisfied the noble Lord, Lord Lester, on the way in which we have handled these important measures. The House is aware of his leadership on equality legislation. However, I shall do my best to respond to his specific questions. He asked about the 1976 Act, which covers discrimination on grounds of colour, race and ethnic origin, and the new definitions of indirect discrimination and harassment, which will apply only to discrimination on the grounds of race and ethnic or national origins.

The short answer, which I do not pretend will fully satisfy him, is that we are fully implementing the race directive. We are satisfied that we are by these measures fully implementing it, and we are doing so by the due date. As such, we are making changes that will benefit those bringing claims within the scope of the directive. The criticism from the noble Lord, Lord Lester, and others, is not that we have not implemented the directive but that we have not gone further than the directive to extend the directive's benefits to all other elements of our race relations legislation. I hear and acknowledge that as a statement of fact. However, we are making changes that will benefit those who are bringing claims within the scope of the directive. Those bringing claims that are outside the scope of the directive will not have suffered any detriment as a result of the changes that we are making. Courts and tribunals will of course have to come to terms with the provisions; that is often the case.

Lord Lester of Herne Hill

My Lords, I am grateful for that answer, but there is something that I do not understand about it. The race directive itself, as the noble Lord, Lord Ouseley, indicated, refers to grounds of racial or ethnic origin. Would the Minister not agree with me that, if someone is discriminated against on the grounds of racial or ethnic origin, in ordinary common sense language that would include their colour? When someone is the victim of a colour bar, would we not all say that that person is the victim of racial discrimination? So I do not understand why the directive is not being implemented more faithfully to include colour bars as well as other forms of racial discrimination. Will the Minister deal with that point?

Lord Filkin

My Lords, I can deal with it to the best of my ability as a non-lawyer as compared with the noble Lord, Lord Lester. Our understanding is that the directive does not apply to discrimination on the grounds of colour, and that it specifically includes discrimination on the grounds of nationality. That is our understanding and interpretation of the directive: it does not apply to colour—hence the difference that the noble Lord has raised.

The Earl of Onslow

My Lords, how does anyone allow a directive to be passed which says, "You can't do it because you're West Indian, but we're not going to complain because you say you are black". That merely seems stupid. Why do we pass such legislation?

Lord Filkin

My Lords, perhaps I may further address the second question raised by the noble Lord, Lord Lester. We do not expect that we are creating widespread confusion in this area. The new statutory definition of harassment, for example, mirrors the concept which has been developed through case law. We do not consider that it will be unduly difficult for the courts or public authorities to determine whether the provisions of the directive apply to particular functions.

It is already clear that functions of public authorities that constitute the provision of goods and services are covered by the directive. Courts may, in some circumstances, have to determine whether a particular function falls within the directive. Our discussions across government, however, have led us to the conclusion that this is unlikely to cause significant problems. Again, of course, we are fully implementing the directive.

Perhaps I may give an example. Our view is that functions such as social work, benefit payments and social inclusion would constitute—

The Earl of Onslow

My Lords, will the Minister answer my question as to why there is this difference—this lack— regarding colour and race? He has done what I have seen Ministers of all parties do. When asked a difficult question, he has stuck his head down, got his neck into his collar, read his brief and hoped that people will ignore and forget what they have asked. Please will he answer the point about the difference between colour and race?

Lord Filkin

My Lords, the question that I heard from the noble Earl was: "Why is legislation of this type passed?"—to which there is not a particular focused answer. The directive was passed—

Baroness Anelay of St Johns

My Lords, I wonder whether I might interrupt the Minister. I think there has been a genuine misunderstanding. I think that my noble friend was seeking to agree with the noble Lords, Lord Ouseley and Lord Lester of Herne Hill. He was not questioning the need for this legislation per se. He was questioning the disparity between a definition including a reference to nationality without referring to the word "colour". He was trying to agree with both noble Lords who raised that point and felt that perhaps the Minister had not adequately responded. I hope that that assists the Minister. From my knowledge of my noble friend, I believe that that is exactly what he was trying to present.

Lord Filkin

My Lords, I shall do my best again to respond. My understanding was that the noble Earl was asking why colour was not covered in the directive but race was. There, I am in some difficulty, because the directive was passed in 2000 and I was not party to it. I have no knowledge of the negotiations. I can do my best to research the matter, but I am not in a position now to give an answer as to what happened at that point in the negotiations. I shall do my best to see whether I can find a fuller answer and write to the noble Earl, Lord Onslow, on that point.

The Earl of Onslow

My Lords, I thank the Minister for that answer. It is such a relief when someone says: "I don't know the answer. I shall go away and find it". That is always appreciated. I am sorry if I have been slightly beastly to the noble Lord. I thank him for that last intervention.

Lord Lester of Herne Hill

My Lords, when the Minister does his research, will he note that the preamble to the directive contains a reference to the International Convention on the Elimination of All Forms of Racial Discrimination that includes colour? It was plainly contemplated by the makers of the directive that colour should be included. The definition in the international convention is the one in the Race Relations Act and the one in international human rights law. So, although I put it very politely, I respectfully submit that the Government have been badly advised on that important issue. If it could he looked into, I should be very grateful.

Lord Filkin

My Lords, I am glad to give an undertaking to do so and to press the point strongly. I shall respond in parallel to both noble Lords and to other noble Lords who have raised the issue, which to my recollection included the noble Lord, Lord Ouseley.

The third question raised by the noble Lord. Lord Lester, was about the regulations not applying to many of the functions to public authorities which were imported into the Race Relations Act 1976 by the Race Relations (Amendment) Act 2000. Again, we do not think that public authorities will he caused undue difficulties. Although not all public functions may be within the scope of the directive, many are. In any event, the new statutory duty applies to all forms of unlawful discrimination whether they are unlawful by virtue of the original provisions of the 1976 Act, by virtue of the amendments made to that Act by the 2000 Act or by these regulations.

Public authorities will not therefore have to take a significant number of new issues into account in complying with the duty. We do not anticipate that the regulations represent a significant burden. if any, to public authorities in this respect.

On the fourth question asked by the noble Lord, Lord Lester of Herne Hill, regarding whether this provision will inevitably lead to more complex and opaque legislation and on the question of a single equalities Bill, the Government welcome the noble Lord's Bill as a major contribution to the debate on equality. However, as he knows, and I am sure does not celebrate, we are not at this point in time of the view that a single piece of legislation at this stage would be appropriate.

Equality legislation is constantly evolving. Our view is that an incremental approach to implementing equality legislation allows us fully to think through the implications at each stage. We shall be indicating our thinking on a single equalities body and making public how the Government intend to move forward on that. I hope that we can make that clear before the summer.

However, I have heard the comments that have been strongly argued from at least three points in the House about whether this legislation will be complicated to implement. I repeat that the directive is being fully implemented in our judgment. Therefore, we are fully in compliance with the directive by the timetable it sets.

The argument has been made that the issue may be more complicated by using secondary rather than primary legislation. I shall commit to monitor the situation. We will look at evidence from the CRE, from practitioners and elsewhere so that we are in a position to track if there are difficulties experienced which in our own judgment are greater than those we have concluded will be the case.

Lord Lester of Herne Hill

My Lords, I promise the noble Lord this is my last interruption. I wonder whether he will consider one further point. He mentioned in his important speech that the Government were looking across horizontally at the framework directive and trying to get it and the race directive internetted in a similar way.

Perhaps I may put this point for further thought by him and his department. The difference in the race directive is that it applies beyond the employment field. The Government have levelled down to the framework directive—for example, so far as concerns the burden of proof—in a way that means that it is lightened in employment cases but not in other cases, even though that is not what the directive says. That is a good example of not giving full faith and credit to this directive because the Government are concerned about broader considerations in the framework directive. I should be grateful if that could be looked at as well.

Lord Filkin

My Lords, I shall certainly undertake to look also at that. What I was seeking to express was not exactly as put by the noble Lord, Lord Lester, that we were seeking to implement the provisions in exactly the same way legally, but to think about the consequences and the processes of their implementation on the end target—the employer—to try to see where as far as possible, consistent with a duty to implement each of them, one could do it in a way that would make the regulatory burden on business less rather than more.

In conclusion, on that general point, before turning to one or two others, I wanted to say that we shall monitor the situation to see whether there were problems with its implementation and look to rectify any inconsistencies that resulted when a suitable opportunity arose.

The noble Lord, Lord Monson, also raised the charge that we were being bullied by the European Union in that respect. In fact, Article 13 was not a product of the European Union bullying us but, if anything, the European Union taking the basis of British race relations and seeking to use it as a platform to apply to other European Union countries. That is in part why we have taken the view that the impact on us of the directive is relatively minor compared with the impact on most other European member states, which have had to pass substantial legislation to bring themselves into compliance with it.

The noble Lord, Lord Monson, also asked about the issue of partnerships. The directive covers partnerships in Article 3(1)(a), which sets out the scope of the directive and refers expressly to access to self-employment. A partnership that refuses to admit a person to be a partner on the basis of his race will be in breach of the principle of equal treatment laid down in the directive, which is why it has been included.

The noble Lord, Lord Ouseley, made a strong, trenchant and painful criticism of the Government. It is doubly painful to hear them from him, given the leadership to race equality that he has given in his previous roles. Nevertheless, without necessarily answering every question, we believe that we are fully complying with the directive.

I shall address one or two more points and then make a general concluding comment. On the issue of indirect discrimination, Article 7 requires a remedy to be available to persons who consider themselves wronged. Individuals who respond to discriminatory advertisements but do not gain employment, for example, will still be able to bring employment tribunal proceedings alleging discrimination in recruitment and will able to rely on the new burden of proof provisions in support of their case.

In theory, it will also be open to an individual who had not responded to a discriminatory advertisement—because the advertisement had discouraged him from applying—to bring tribunal proceedings. However, such a person may be unlikely to want to bring proceedings and, if he does, will not necessarily be successful because, if he did not apply for a job, he will have difficulty proving financial loss; or may have difficulty showing as a matter of law that the employer discriminated against him as an individual; or that the employer is under a duty to make adjustments where he does not and ought not reasonably to know that the person might be an applicant.

The current arrangements ensure that the CRE can take a strategic approach to discriminatory advertisements, while also being able to act against persistent offenders. I have answered the noble Lord, Lord Ouseley, with respect to our firm view that the directive does not apply to discrimination on grounds of colour. I hope that he will bear with me if I have not covered all his points, but there are one two others that I should cover.

On the definition of harassment, subsection (2) of new Section 3A makes clear that when considering whether the conduct has the effect of violating dignity, tribunals must take into account all relevant circumstances, including the perception of the complainant, but it will be regarded as harassment only if the tribunal is satisfied that the conduct complained of should reasonably be considered as having that effect. So trivial incidents would not constitute harassment, even if the complainant genuinely believed that his dignity was violated.

We do not accept that that definition goes too far. The provisions reflect the judgment of the Employment Appeal Tribunal in the case of Driskel v. Peninsula Business Services, decided in 2000. Employers should not be found guilty of harassment just because the complainant thinks that he has been harassed. Subsection (2) of new Section 3A does not apply to conduct intended to violate dignity; that would always amount to harassment, irrespective of perception.

The only other comment that I want to make to the noble Lord, Lord Ouseley, is that although he is more than disappointed about how we have implemented the directive, I reaffirm that the Government's commitment in practice to drive race equality and equality of opportunity in our society is as strong as that of any government has ever been.

The mechanism of the law may not be in exactly the form that the House may have ideally wanted, but we will use the law—the Race Relations (Amendment) Act 2000 and the framework agreement—in what I hope will be a vigorous and intelligent fashion to try to ensure that we deliver race equality in our society in ways that will deliver significant improvements to people in Britain. I commend the regulations to the House.

On Question, Motion agreed to.

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