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4.45 pm

Mr. Harry Cohen (Leyton and Wanstead): I beg to move amendment No. 1, in page 2, leave out from beginning of line 18 to end of line 31 on page 3.

Mr. Deputy Speaker (Mr. Michael Lord): With this it will be convenient to discuss the following: Amendment No. 54, in page 2, line 38, after "(5)", insert--

'in connection with the granting or refusal of--
(a) pre-entry clearance to enter the United Kingdom;
(b) leave to enter the United Kingdom;
(c) leave to remain in the United Kingdom;
(d) a condition or conditions of leave to enter or remain in the United Kingdom; or
(e) citizenship of the United Kingdom.'.

Government amendments Nos. 3, 35 to 37, 41, 42, 44 and 45.

Mr. Cohen: This is a good Bill which implements the recommendations of the Stephen Lawrence inquiry and tackles the real problems of direct and indirect institutional racism. However, my amendment deletes the exemption of immigration and asylum matters from the institutional racism provisions.

I can put the case by putting on record an article in journal No. 56 of the Campaign against Racism and Fascism. It is by Frances Webber, a leading immigration lawyer. She puts the matter succinctly, albeit a little pejoratively towards the Home Secretary. The article, which is called "The last frontier: immigration controls and racism", asks:

Why does a minister who wants to be remembered for his anti-racism keep on giving aid and comfort to racists? In the Race Relations (Amendment) Bill currently going through Parliament, Home Secretary Jack Straw is once again trying to face both ways at once. On the one hand, the Act allows immigrants and asylum-seekers to appeal against immigration decisions and to obtain damages from a county court, if such decisions have discriminated on grounds of race or colour. On the other hand,

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immigration officers will be authorised to discriminate on the grounds of "nationality, ethnic or national origin" in carrying out their functions under the Immigration and Nationality Acts.


In the Lords, Lord Bassam of Brighton sought to justify the provision by talking about the need to stop "scams" operated by Chinese nationals masquerading as Malaysian or Singaporean Chinese which, he claimed, made it acceptable for immigration officers to check every Chinese-looking person.


The question puzzling us lawyers who act for immigrants and asylum-seekers is this: how on earth are we going to prove unlawful race discrimination on the part of an immigration officer, if it is not unlawful for an immigration officer to discriminate against someone on the grounds of their "perceived ethnic origin"? It is ironic that a law brought in to counter institutional racism ends up--so far as immigration is concerned at least--by rationalising and further institutionalising it.

Notwithstanding the comments regarding the Home Secretary, there is a fundamental point there concerning the complete exemption of the immigration and asylum service. I tabled the amendment to get a response from the Minister on why this exists, when the thrust of the Stephen Lawrence inquiry and the Bill is to tackle institutional racism wherever it occurs, including in the public sector. I do not see why immigration should have that total exemption.

Proposed section 19C states that it will not be

unlawful to discriminate against another person on grounds of nationality or ethnic or national origins . . .

where the act is by a Minister acting personally or an immigration official acting in accordance with an authorisation by the Minister, or with respect to a particular class of case authorised by statute or statutory instrument. If this House has delegated the power to a Minister, I see that he could exercise that power. However, I am concerned as to how he will delegate power--presumably down to a civil servant, or even to junior civil servants. I would like the operation of the system to be spelt out. Will the exemption also apply to a junior civil servant in the immigration and nationality directorate acting in the name of the relevant Minister or civil servant?

How will the Minister be held accountable? Will ministerial responsibility extend to the actions of the junior civil servants in the immigration and nationality directorate who act in his name under the proposed legislation, or will he be able to palm things off on the civil service, as happened with the BSE scandal? That is a serious point about ministerial power and its possible extension to civil servants.

In the context of junior immigration officers who may exercise power and to whom the exemption may apply, there have been cases in the past of such officers being sympathisers and supporters of openly racist parties such as the National Front or the British Movement. Although I have not heard of a case for many years, there have been such cases in the past. I presume that disciplinary measures are in place. I ask the Minister to confirm that. How will they operate against an officer who is openly racist if it is lawful under the Bill for him to discriminate? Those questions need answering.

I understand that there is a delay in determining and authorising the classes of cases in respect of which discrimination will be lawful. Perhaps the provision will not be effected until next April or later because the immigration and nationality directorate needs more time to determine those classes of cases. If that is so, will the

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classes be spelt out to Parliament, perhaps with an opportunity for a discussion on them? They do not appear in the Bill. Can they be changed arbitrarily? Can new classes be added without anyone other than civil servants knowing?

If the Government are going to persist with the exemption for the immigration service, what activities will be authorised as lawful racial discrimination? A broad, blanket authorisation is not right. I am worried about the classes of cases to which the clause refers. Racial discrimination could take place on the basis of scare campaigns. For example, an argument was made for trying to ban all Kenyan Asians and Ugandan Asians as a class, regardless of the merits of the cases of individuals, who were facing perhaps torture or death in the countries that they were leaving. The same could apply currently to the Roma.

The provision could lead to a susceptibility to scaremongering, and to racial discrimination in immigration and asylum policy--through banning whole categories of people--becoming legal under the Bill. Another recent example is the Kosovans--perhaps they could all have been banned under the Bill. I shall be interested in the way in which the Minister deals with that concern.

Today, I received a letter from Mr. Richard Jarman, the parliamentary officer of the Commission for Racial Equality. It stated:

In a meeting I had with the Refugee Council and the Immigration Law Practitioners Association, the one activity where discrimination occurs that is of real concern is the detention of asylum seekers on arrival (when they have committed no offence in the UK whatsoever). Currently certain nationalities and people of Roma ethnicity are nearly always detained. The CRE, Refugee Council, ILPA all say that detention of asylum seekers should not be done on the basis of nationality or ethnic or national origin but on the basis of the particular circumstances of each individual asylum seeker.

Clearly that will not happen given the way in which the law is framed. There is a potential blanket provision to discriminate. There should not be a blanket authorisation of discrimination when dealing with asylum seekers on arrival. That is clearly different from detention prior to deportation, which often happens after a person has breached his conditions of entry. Blanket authorisation on arrival has a possible institutional racist content.

The role of the monitor is set out in proposed section 19D. I know that he will submit an annual report to Parliament, but what can he say? How can he refer to any institutional racism in the immigration and nationality service or even on the part of a Minister? Will that be exempt under the law? Could such racism be deemed legal in immigration matters? What power will the monitor have? Will he have the power, for example, to see all the papers and files in a case? Can a Minister or civil servant deny access to them?

The monitor might be toothless, rather like the prison ombudsman, who was denied access to papers and files by the previous Government. Will he be able to investigate every case where a charge of racism is brought, or will he not even be notified of cases where racism has been alleged? Will he be able to require revised consideration by the immigration and nationality service, perhaps of a Minister, and a possible new decision where, in his opinion, racism has occurred in the service?

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If the monitor is not to be able to do any of these things, what can he do? Without any of the powers to which I have referred, he will be toothless and not worth even an annual report to Parliament.

These are important matters. The Government have set off on the path of total exemption for the immigration and nationality service, and it is not the right approach. It might be a matter of balance but total exemption is not the answer. If my amendment and those of Liberal Democrats are not accepted, the matter should be kept under review. Perhaps an amendment might be introduced later. I await my hon. Friend's answers with interest.

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