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Race Relations (Amendment) Bill
 
 

 
 
A

B I L L

[AS AMENDED ON REPORT]

TO

Extend further the application of the Race Relations Act 1976 to the police and other public authorities; to amend the exemption under that Act for acts done for the purpose of safeguarding national security; and for connected purposes.

BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
 

 
Further extension of 1976 Act to police and other public authorities
Discrimination by police and other public authorities.     1. - (1) After section 19A of the Race Relations Act 1976 (in this Act referred to as "the 1976 Act") there is inserted-
 
 

"Public authorities
Discrimination by public authorities.     19B. - (1) It is unlawful for a body or other person specified in Schedule A1 or of a description falling within that Schedule to discriminate, in carrying out any of its functions, against another person.
 
      (2) For the purposes of this section and section 19C, section 1 has effect with the omission of subsection (1)(b).
 
      (3) Where an entry in Schedule A1 is limited to a person in a particular capacity, this section does not apply to that person in any other capacity.
 
      (4) Where an entry in Schedule A1 is limited to particular functions of a person, this section does not apply to that person in relation to any other functions.
 
      (5) The Secretary of State may by order amend Schedule A1 so as to extend the application of this section if he considers that the extension is limited to functions or particular functions of a public nature.
 
      (6) The Secretary of State may by order amend Schedule A1 in consequence of-
 
 
    (a) any person who falls within it, or an office or other post to which it relates, ceasing to exist or otherwise changing its nature;
 
    (b) any person who falls within it ceasing to exercise functions in a particular capacity or ceasing to exercise functions; or
 
    (c) any functions of a person falling within it appearing to the Secretary of State not to be functions of a public nature.
      (7) An order under this section may contain such incidental, supplementary or consequential provision as the Secretary of State considers appropriate (including provision amending or repealing provision made by or under an enactment).
 
      (8) Nothing in this section makes unlawful any act of discrimination which-
 
 
    (a) is made unlawful by virtue of any other provision of this Act; or
 
    (b) would be so made but for any provision made by or under this Act.
Exception from section 19B for certain acts in immigration and nationality cases.     19C. - (1) Section 19B does not make it unlawful for a relevant person to discriminate against another person on grounds of nationality or ethnic or national origins in carrying out immigration and nationality functions.
 
      (2) For the purposes of subsection (1), "relevant person" means-
 
 
    (a) a Minister of the Crown acting personally; or
 
    (b) any other person acting in accordance with a relevant authorisation.
      (3) In subsection (2), "relevant authorisation" means a requirement imposed or express authorisation given-
 
 
    (a) with respect to a particular case or class of case, by a Minister of the Crown acting personally;
 
    (b) with respect to a particular class of case-
 
      (i) by any of the enactments mentioned in subsection (5); or
 
      (ii) by any instrument made under or by virtue of any of those enactments.
      (4) For the purposes of subsection (1), "immigration and nationality functions" means functions exercisable by virtue of any of the enactments mentioned in subsection (5).
 
      (5) Those enactments are-
 
 
    (a) the Immigration Acts (within the meaning of the Immigration and Asylum Act 1999);
 
    (b) the British Nationality Act 1981;
 
    (c) the British Nationality (Falkland Islands) Act 1983;
 
    (d) the British Nationality (Hong Kong) Act 1990;
 
    (e) the Hong Kong (War Wives and Widows) Act 1996;
 
    (f) the British Nationality (Hong Kong) Act 1997; and
 
    (g) the Special Immigration Appeals Commission Act 1997;
  and include any provision made under section 2(2) of the European Communities Act 1972, or any provision of Community law, which relates to the subject-matter of any of the enactments mentioned above.
 
Exception from section 19B for decisions not to prosecute.     19D. Section 19B does not apply to a decision not to institute criminal proceedings or, where such a decision has been made, to any act done for the purpose of making a decision about instituting criminal proceedings."
 
      (2) Schedule 1 (which inserts Schedule A1 into the 1976 Act) is to have effect.
 
Certain appointment functions outside the employment field.     2. - (1) Section 76 of the 1976 Act (government appointments outside the employment field) is amended as follows.
 
      (2) In subsection (1) for "This section" there is substituted "Subsection (2)".
 
      (3) After subsection (2) there is added-
 
 
    "(3) Subsection (4) applies to-
 
 
    (a) any recommendation made by a Minister of the Crown or government department in relation to an appointment to an office or post where section 4 does not apply in relation to the appointment; and
 
    (b) any approval given or refused by such a Minister or department in relation to any such appointment.
      (4) In making the recommendation, or giving or refusing the approval, and in making the arrangements for determining who should be recommended or approved, the Minister of the Crown or government department shall not discriminate against another person.
 
      (5) Subsection (4) does not apply in relation to an appointment to an office or post for the purposes of a private household or where, if the holding of the office or post were employment, being of a particular racial group would be a genuine occupational qualification for the job.
 
      (6) The High Court may, on an application for judicial review, make a declaration to the effect that a Minister of the Crown or government department has contravened subsection (4) and may award damages in respect of the contravention.
 
      (7) In Scotland, the Court of Session may, in a petition for judicial review, grant declarator to the like effect and may award damages in respect of the contravention.
 
      (8) In this section-
 
 
    (a) references to the refusal of an approval include references to a deliberate omission to give an approval; and
 
    (b) references to Ministers of the Crown and government departments include references to the National Assembly for Wales and the Scottish Administration."
Police: extension of liability of chief officers etc.     3. After section 76 of the 1976 Act there is inserted-
 
 

"Police
Police forces.     76A. - (1) In this section, "relevant police office" means-
 
 
    (a) the office of constable held-
 
      (i) as a member of a police force; or
 
      (ii) on appointment as a special constable for a police area; or
 
    (b) an appointment as police cadet to undergo training with a view to becoming a member of a police force.
      (2) For the purposes of Part II, the holding of a relevant police office shall be treated as employment-
 
 
    (a) by the chief officer of police as respects any act done by him in relation to that office or a holder of it;
 
    (b) by the police authority as respects any act done by it in relation to that office or a holder of it.
      (3) For the purposes of section 32-
 
 
    (a) the holding of a relevant police office shall be treated as employment by the chief officer of police (and as not being employment by any other person); and
 
    (b) anything done by a person holding such an office in the performance, or purported performance, of his functions shall be treated as done in the course of that employment.
      (4) There shall be paid out of the police fund-
 
 
    (a) any compensation, costs or expenses awarded against a chief officer of police in any proceedings brought against him under this Act, and any costs or expenses incurred by him in any such proceedings so far as not recovered by him in the proceedings; and
 
    (b) any sum required by a chief officer of police for the settlement of any claim made against him under this Act if the settlement is approved by the police authority.
      (5) Any proceedings under this Act which, by virtue of this section, would lie against a chief officer of police shall be brought against-
 
 
    (a) the chief officer of police for the time being; or
 
    (b) in the case of a vacancy in that office, against the person for the time being performing the functions of that office;
  and references in subsection (4) to the chief officer of police shall be construed accordingly.
 
      (6) A police authority may, in such cases and to such extent as appear to it to be appropriate, pay out of the police fund-
 
 
    (a) any damages or costs awarded in proceedings under this Act against a person under the direction and control of the chief officer of police;
 
    (b) any costs incurred and not recovered by such a person in such proceedings; and
 
    (c) any sum required in connection with the settlement of a claim that has or might have given rise to such proceedings.
Other police bodies etc.     76B. - (1) Section 76A applies in relation to the National Criminal Intelligence Service ("NCIS") and the National Crime Squad ("the NCS") as it applies in relation to a police force but as if any reference-
 
 
    (a) to the chief officer of police were to the Director General of NCIS or of the NCS, as the case may be;
 
    (b) to the police authority were to the Service Authority for the National Criminal Intelligence Service or the Service Authority for the National Crime Squad, as the case may be;
 
    (c) to the police fund were to the service fund established under section 16 of the Police Act 1997 (NCIS service fund) or section 61 of that Act (the NCS service fund), as the case may be.
      (2) Section 76A also applies in relation to any other body of constables or cadets as it applies in relation to a police force, but as if any reference-
 
 
    (a) to the chief officer of police were to the officer who has the direction and control of the body in question;
 
    (b) to the police authority were to the authority by whom the members of the body are paid;
 
    (c) to the police fund were to money provided by that authority.
      (3) In relation to a member of a police force or a special constable who is not under the direction and control of the chief officer of police for that police force or, as the case may be, for the police area to which he is appointed, references in section 76A to the chief officer of police are references to the chief officer under whose direction and control he is."
 
 
Special cases: procedural and other consequences
Criminal investigations and proceedings.     4. - (1) After section 57(4) of the 1976 Act (enforcement of Part III of that Act) there is inserted-
 
 
    "(4A) As respects an act which is done, or by virtue of section 32 or 33 is treated as done, by a person in carrying out public investigator functions or functions as a public prosecutor and which is unlawful by virtue of section 19B, no remedy other than-
 
 
    (a) damages; or
 
    (b) a declaration or, in Scotland, a declarator,
  shall be obtainable unless the court is satisfied that the remedy concerned would not prejudice a criminal investigation, a decision to institute criminal proceedings or any criminal proceedings.
 
      (4B) In this section-
 
 
    "criminal investigation" means-
 
      (a) any investigation which a person in carrying out functions to which section 19B applies has a duty to conduct with a view to it being ascertained whether a person should be charged with, or in Scotland prosecuted for, an offence, or whether a person charged with or prosecuted for an offence is guilty of it; or
 
      (b) any investigation which is conducted by a person in carrying out functions to which section 19B applies and which in the circumstances may lead to a decision by that person to institute criminal proceedings which the person has power to conduct; and
 
    "public investigator functions" means functions of conducting criminal investigations or charging offenders;
  and in this subsection "offence" includes any offence under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957 (and "offender" shall be construed accordingly).
 
      (4C) Subsections (4D) and (4E) apply where-
 
 
    (a) a party to proceedings under subsection (1) which have arisen by virtue of section 19B has applied for a stay or sist of those proceedings on the grounds of prejudice to a criminal investigation, a decision to institute criminal proceedings or criminal proceedings; or
 
    (b) the court is otherwise considering whether to grant a stay or sist on those grounds.
      (4D) Where the decision to institute criminal proceedings has been made or the criminal proceedings have been instituted, the court shall grant a stay or sist of the proceedings under subsection (1) unless it is satisfied that the continuance of those proceedings would not prejudice any criminal investigation and would be unlikely to affect any issue which might arise in the criminal proceedings.
 
      (4E) Where no decision to institute criminal proceedings has been made, the court shall not grant a stay or sist of the proceedings under subsection (1) unless it is satisfied that the continuance of those proceedings would be contrary to the public interest or might prejudice any criminal investigation, the decision about instituting criminal proceedings or any subsequent criminal proceedings."
 
      (2) After section 65(4) of the 1976 Act (help for aggrieved persons in obtaining information etc.) there is inserted-
 
 
    "(4A) In section 19B proceedings, subsection (2)(b) does not apply in relation to a failure to reply, or a particular reply, if the conditions specified in subsection (4B) are satisfied.
 
      (4B) Those conditions are that-
 
 
    (a) at the time of doing any relevant act, the respondent was carrying out public investigator functions or was a public prosecutor; and
 
    (b) he reasonably believes that a reply or (as the case may be) a different reply would be likely to prejudice any criminal investigation, any decision to institute criminal proceedings or any criminal proceedings.
      (4C) For the purposes of subsections (4A) and (4B)-
 
 
    "public investigator functions" has the same meaning as in section 57;
 
    "section 19B proceedings" means proceedings in respect of a claim under section 57 which has arisen by virtue of section 19B."
Immigration and asylum appeals.     5. - (1) After section 57(6) of the 1976 Act (enforcement of Part III of that Act) there is added-
 
 
    "(7) No proceedings may be instituted under subsection (1) in respect of an act of discrimination if the act is a decision against which the claimant-
 
 
    (a) may appeal under section 65 of the Immigration and Asylum Act 1999 (decisions unlawful by virtue of section 19B of this Act); or
 
    (b) has so appealed, or is treated as having so appealed by virtue of section 77(2) of that Act, and the appeal has not been finally determined, withdrawn or abandoned.
      (8) Where any such appeal has been allowed on the ground that the authority concerned racially discriminated (within the meaning of Part IV of that Act) against the appellant, it shall be presumed (unless the contrary is proved) in any proceedings under subsection (1) that the decision was an unlawful act of discrimination."
 
      (2) In section 65(1) of the Immigration and Asylum Act 1999 (acts made unlawful by section 6(1) of the Human Rights Act 1998) after "United Kingdom," there is inserted "racially discriminated against him or".
 
      (3) In section 65(2) of that Act, after "Part" there is inserted "-
 
 
    (a) an authority racially discriminates against a person if he acts, or fails to act, in relation to that other person in a way which is unlawful by virtue of section 19B of the Race Relations Act 1976; and
 
    (b) ".
 
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