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Dr. Harris: The problem with the Minister's reply is the same as the problem with the answer to the hon. Member for Beaconsfield. None of the arguments that he adduced could not also be used in different circumstances when it comes to race relations legislation. Organisations could say that they had always had a race bar, and that that is the way that they work. I am not saying that that is a comparable offence, although it is an offence to those who are discriminated against, but the answer given in those cases was that organisations would not be so badly damaged by having to comply with legislation on discrimination, because the Government believe that not discriminating, particularly against children, is a legitimate thing for us to be interested in. I am sorry that I have not got the support of the Minister and the hon. Member for Beaconsfield, but I think that I speak for the many people who will wonder why this clause, which is practically ad personam in terms of organisation, has been added. However, I do not intend to divide the Committee.
Question put and agreed to.
Clause 59 ordered to stand part of the Bill.
Clauses 60 and 61 ordered to stand part of the Bill.
Clause 62
National security
Question proposed, That the clause stand part of the Bill.
Mr. Grieve: I should like the Minister to clarify how the national security let-out will work in practice. This ties in with clause 70, which sets out a procedure for national security issues to be raised during court proceedings on the intervention of the Attorney-General. Am I to infer that it will be necessary for the Government to show that a national security angle justifies the discrimination, or will the Secretary of State simply need to provide a certificate saying that national security applies and that is the end of it?
Paul Goggins: I will need to write to the hon. Gentleman to specify the precise circumstances in which a Minister would sign the document and the extent to which it would be a matter for the court, acting on advice from officials representing the institutions of national security. If there is in fact no difference between those two things, I shall want to make that clear in my letter.
Earlier, we touched on the point that national security cannot be compromised. Even where an element of discrimination might be inherent in an activity, national security must take precedence. We have sought to make that clear in clauses 62 and 70, as well as in other clauses debated today.
As we are touching on clause 70, it may be appropriate to say that it provides for rules of court to enable the court hearing proceedings under this part of the Bill to exclude a claimant or his representatives from the court. Of course, there would be proper judicial support for that individual, who would be able to make a statement prior to the proceedings. The clause also provides for the Attorney-General or the Advocate-General for Scotland to appoint a lawyer to
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represent the claimant's interests in such cases. There is therefore considerable judicial support for that individual, albeit that it is necessary at times to exclude them from the proceedings.
Mr. Grieve: One reason why I was wondering about that was that if the Secretary of State's certificate provides a national security defence or opt-out, why do we need clause 70 at all? Presumably, a case with a national security angle will never get into court in the first place. I wanted a bit of clarification on that. I can infer that a national security angle might suddenly emerge in a case and that the court might need to go into camera or to keep the claimant out. Seeing that the Government have given themselves extensive powers to provide for a national security opt-out, however, it would be helpful if the Minister could set out in his letter exactly how he expects the provisions to operate in practice.
Paul Goggins: I will certainly be happy to provide that information. I suspect that the level of detail involved will require a letter, and I shall write to the hon. Gentleman and copy my letter to the Committee.
Question put and agreed to.
Clause 62 ordered to stand part of the Bill.
Clause 63
Amendment of exceptions
Question proposed, That the clause stand part of the Bill.
Dr. Harris: I referred to the clause when we discussed the Government's order-making power in relation to repealing or creating exceptions. Is there not an inconsistency given that an earlier amendment to clause 63 was not simultaneously made to clause 49(3)? Clause 63 was amended to prevent the Secretary of State from repealing by order an exception under this part, but clause 49(3) still contains the power to
''repeal an exception in subsection (1) or (2)''.
Of course, they might relate to different things. Clause 63(1) says:
''The Secretary of State may by order amend this Part so as to . . . create an exception to a prohibition under section 51(1)'',
and that is clearly different from clause 49. However, clause 63(1)(b) relates to varying
''an exception to a prohibition under this Part.''
The reason why there is no provision in clause 49(3) to vary an exception may be that that is dealt with by the wider coverage of clause 63(1)(b). I raise that in case the Minister can respond now, which would save time dealing with correspondence.
7 pm
Paul Goggins: I can add nothing to what I said earlier. I was fearful—I am not looking at the officials—when I was about to say that I would write to the hon. Gentleman, but my recollection from earlier is that I have already promised to write to him on this issue, so there will be just one letter rather than two, but I will clarify the matter.
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Question put and agreed to.
Clause 63 ordered to stand part of the Bill.
Clauses 64 to 72 ordered to stand part of the Bill.
Clause 73
Employers' and principals' liability
Mr. Grieve: I beg to move amendment No. 132, in clause 73, page 43, line 9, leave out subsection (2).
The clause provides for employers' and principals' liability where the default and the discrimination are in fact carried out by their employee or agent. However, subsection (4) states:
''In proceedings under this Part against a person in respect of an act alleged to have been done by his employee it shall be a defence for the employer to provide that he took such steps as were reasonably practicable to prevent the employee from . . . doing the act, or . . . from doing acts of that kind in the course of his employment.''
That is in respect of an employee. I was somewhat surprised to see that no such provision or defence is provided for in the case of the acts of an agent. I am drawing the Committee's attention to that by seeking to delete subsection (2), which would altogether remove the responsibility of a principal for the acts of an agent.
To give the Minister an obvious example, let us say that I employ a letting agent to let a property that I own. He is apparently a reputable letting agent operating in the locality. Unknown to me, however, he is in fact a religious bigot who dislikes the idea of people of minority faiths coming into the area, so, in operating the letting policy, he tries his best to ensure that people of minority faiths are deterred from applying by being surly and unpleasant to them. If they do get a letting, he tries—unknown to me, because I am the principal—to respond very slowly to any request that they make and is generally unpleasant to them.
If those matters are completely outside my knowledge—that will often be the case, as the Minister will realise simply by applying his mind to it—is it right that the principal should be saddled with the default of his agent? There is an easy way to cure the problem, which is to provide for a similar protection to that provided for employers in respect of employees, but the Government have not done that. In the absence of such provision, I am very unhappy about clause 73(2).
Paul Goggins: In direct answer to the hon. Gentleman's question, no, it is not right that a person who benefits from the unlawful actions of their agent should be able to escape entirely. The intentions expressed are the same as those expressed in section 32 of the Race Relations Act 1976. However, the different wording seems to us, potentially at least, to raise questions about whether the effect is exactly the same. The hon. Gentleman has made a good point that requires further reflection. We will reflect on it further and, if clarification is required, we will bring that forward at a subsequent stage.
Mr. Grieve: I am grateful to hear that from the Minister. Part of the problem is that what is an agent is variable. An agent can be someone with whom one has
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a close relationship or who is operating on behalf of an individual. Alternatively, the relationship may be quite distant. I would not want people to be unfairly penalised or even saddled with a claim when they had acted with complete propriety and the agent's actions were outside the scope of the agency agreement. If the Minister responds positively, I will be very grateful. I beg to ask leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
Clause 73 ordered to stand part of the Bill.
Clauses 74 to 79 ordered to stand part of the Bill.
Further consideration adjourned.—[Mr. Dhanda.]
Adjourned accordingly at five minutes past Seven o'clock till Thursday 8 December at five minutes to Nine o'clock.
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