House of Lords - Explanatory Note
Race Relations (Amendment) Bill [H.L.] - continued          House of Lords

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Clause 6: National security

64. Section 42 and section 69(2)(b) of the Act together provide that an act of racial discrimination is not unlawful if done for the purposes of safeguarding national security, and that a Ministerial certificate is conclusive evidence that an act was done for that purpose. The power to issue such conclusive certificates has been found by the European Court of Human Rights, in the case of Tinnelly and McElduff 249 EHRR 1999, to be incompatible with article 6(1) of the European Convention on Human Rights. Clause 6 removes the power of the Minister to issue a conclusive certificate in relation to non-employment cases. (The Employment Rights Act 1999 removed the power in relation to employment cases.) It also changes the national security defence so that it is not sufficient that a discriminatory act was done for the purpose of safeguarding national security, it must also be justified by that purpose.

65. Subsection (1) amends the national security defence under section 42 of the Act. The effect is that it will no longer be a complete defence to show that an act was done for the purposes of national security. It will, in addition, now need to be shown that the act was justified for that purpose. This provision is in the same terms as sections 90 and 98 of the Northern Ireland Act 1998 which applies to the national security defence in relation to claims of discrimination under the Northern Ireland Act 1998.

66. Subsection (2) repeals the power of a Minister to issue a national security certificate.

Clause 7: National security procedure

67. Clause 7 inserts a new section 67A into the Act which makes provision for courts to adopt certain special procedures when dealing with cases under the Act that raise national security issues.

68. The clause is based on similar provisions for tribunal rules made in Schedule 8 of the Employment Relations Act 1999, which amends the Employment Tribunals Act 1996. However, appropriate rules of court already exist in some cases so provision for new rules of court has not always been necessary.

69. Subsection (1) of section 67A provides that rules may be made enabling a court, where it considers it expedient for national security reasons, to:

  • exclude the claimant, and/or his representative(s), and/or court assessors, from all or part of proceedings;

  • allow an excluded claimant or representative to make a statement to the court; and

  • take steps to keep the reasons for its decision secret.

70. Subsections (2) to (4) of section 67A also provide that, where a claimant and his representatives have been so excluded from proceedings, the Attorney General or, in Scotland, the Advocate General for Scotland, may appoint a person suitably qualified to represent the interests of a claimant. It provides that this person shall not be responsible to the claimant. These provisions are based on similar provisions in section 6 of the Special Appeals Commission Act 1997.

Schedule 1: Public Authorities

71. Schedule 1 to the Bill lists those bodies, and those classes of bodies, that are to be public authorities for the purposes of section 19B as amended. The Schedule covers the main central and local government bodies and the police.

72. It does not list non-departmental public bodies, or private bodies carrying out functions of a public nature. However, it will be possible to add these bodies - or, in the case of private bodies, those bodies in so far as their functions are of a public nature - to the Schedule by order.

Schedule 2: Consequential amendments

73. Schedule 2 makes consequential amendments arising out of the main provisions of the Bill.

74. Part III of the Act does not generally apply outside Great Britain. In general, this will be the position under new clause 19B. Paragraph 1 extends the application of clause 19B so that it applies to the grant or refusal of entry clearance outside Great Britain.

75. Section 53 of the Act provides that no proceedings shall be brought for racial discrimination other than as provided for under the Act. Paragraph 2 amends section 53 to enable proceedings under the Act also to be brought as provided for under section 65 of the Immigration and Asylum Act 1999.

76. Paragraph 3 amends section 53 to provide that judicial review of acts relating to the appointments newly covered by section 76 is not available under section 53, except as provided for under section 76.

77. Section 73(1)(b) of the Act allows the Secretary of State by order to amend the Act, following consultation with the CRE, to make lawful an act which would otherwise be unlawful under particular provisions of the Act. The order is subject to the affirmative resolution procedure. Paragraph 4 adds section 19B to this list of provisions.

78. Section 75 of the Act makes provision in relation to the application of the Act to the Crown. Subsection (1) of section 75 provides that the Act applies to acts of public authorities "as it applies to an act done by a private person." This has been interpreted, in the case of R v Entry Clearance Officer, Bombay ex parte Amin [1983] 2 AC 818 as meaning that if an act of a public authority could not be done by a private person, the Act does not apply to that act. Paragraph 5 provides that subsection 75(1) of the Act does not apply to section 19B or section 76 since they make express provision about how they apply to the Crown.

79. Paragraph 6 replaces the reference to section 16 in that section to a reference to the new sections 76A and 76B that will replace it.

Schedule 3

80. This Schedule makes repeals consequential to the provisions in the Bill.


81. With the exception of the following, the measures in the Bill will be cost neutral or have a minimal impact on public expenditure.

82. The new provision making it unlawful for specified public authorities to discriminate directly on racial grounds in exercising any of their functions (clause 1) is likely to result in increased costs for public authorities. Although many functions of public authorities are already covered by the existing Act, some are not. The new provision could lead public authorities to amend their procedures and practices in response to successful actions, or in anticipation of actions, and this may give rise to costs.

83. Enforcement of this new provision will, with the exception of some cases in the immigration field, be through designated county courts and in Scotland sheriff's courts. With some exceptions, proceedings will be subject to the same procedures and remedies as for existing non-employment cases under the Race Relations Act 1976. There are likely to be additional costs to public authorities in relation to defending cases, settling cases, and paying damages if they lose cases. The current level of awards in non-employment cases may be a guide to the likely level of award in new cases: in cases represented by the CRE in 1997 and 1998, awards averaged approximately £1,000, settlements averaged approximately £2,000, and pre-litigation settlements settled by CRE officials averaged approximately £6,000.

84. The Bill will extend the Race Relations Act 1976 to a wide range of functions of specified public authorities. It is impossible to calculate what the overall financial effects of the Bill will be for those authorities, or the effect for particular public authorities, or to be sure that any amendments to their procedures and practices would not have been made in any case regardless of the provisions of the Bill (for example, as a result of other domestic policy decisions).

85. Additional public expenditure on the legal aid budget is also likely to arise from the new provision introduced in clause 1. In relation to cases starting in the county court, or in Scotland the sheriff court (all cases other than some immigration cases) it is estimated that this additional expenditure will increase gradually over five years, and that a steady-state will be reached in year five. The size of the increase will depend on a number of factors that are hard to predict (including the number of new cases that will be brought) but it is estimated that the net cost to the legal aid budget (taking into account recovered costs) could be up to £600,000 per annum once steady-state has been reached.

86. In addition, there are likely to be significant costs to the legal aid budget arising from cases starting in the Immigration Appellate Authority (IAA) (clause 5). Again, the number of cases is difficult to predict. Forecasts of the total number of appeals to the IAA for the next financial years are 31,000 (2000-2001) and 35,000 (2001-2002), and it is possible that a high proportion of such appeals will in future include an appeal on race grounds. For each case that includes an appeal on race grounds, there will be some additional cost to the legal aid budget.

87. There will be some additional costs to the county courts and in Scotland the sheriff courts, arising both from cases that start in those courts and from cases that start in the IAA, but on current assumptions it will be possible to contain these within the current fees structure.

88. There will be an initial cost from the provision to start some immigration cases in the IAA in training adjudicators and IND staff to handle Race Relations Act points.

89. The CRE may provide assistance to active or prospective complainants under the Race Relations Act. This may include giving advice, seeking a settlement and arranging for legal advice or assistance or representation. There could be increased costs for the CRE arising from the increased number of cases that will now be within the scope of the Race Relations Act.

90. Costs arising as a result of the Bill will be met from agreed Departmental expenditure limits.


91. The Bill will not have any significant effects on public service manpower.


92. The Bill will come into effect on the date or dates specified by order by the Secretary of State.


93. A Regulatory Impact Assessment has been prepared and is separately available. There is the potential for some costs implications for private sector bodies carrying out public functions that are not already covered by the existing legislation. It is not envisaged that the cost implications will be significant.

94. Copies of the Regulatory Impact Assessment are available from Ian Cheeseman, Race Equality Bill Team, Constitutional and Community Policy Directorate, Home Office, 12th Floor, 50 Queen Anne's Gate, London SW1H 9AT.


95. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement, before second reading, about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). Lord Bassam of Brighton, Parliamentary Under Secretary of State for the Home Department has made the following statement:

In my view the provisions of the Race Relations (Amendment) Bill [H.L.] are compatible with the Convention rights.

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Prepared: 3 December 1999