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Racial Discrimination: Legitimate Acts

Lord Lester of Herne Hill asked Her Majesty's Government:

Lord Bassam of Brighton: We have no records of any such individual cases. However, circumstances have arisen, as I have explained separately, where discrimination has been needed to deal with a particular situation.

Lord Lester of Herne Hill asked Her Majesty's Government:

Lord Bassam of Brighton: Section 41(1) of the Race Relations Act 1976 provides that acts are not unlawful under the Act if they are required to be done by an enactment, or in order to comply with a condition or requirement imposed by a Minister by virtue of an enactment.

Section 41(2)(a) and 41(2)(b) of the Race Relations Act 1976 provide that acts that discriminate on the basis of nationality, place of ordinary residence, or length of residence or presence in or outside the United Kingdom or an area within the United Kingdom, are not unlawful under the Act if they are required to be done in pursuance of arrangements made by, or with the approval of, or for the time being approved by, a Minister of the Crown; or to comply with any condition imposed by a Minister of the Crown.

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Records of specific acts taken that are acts of racial discrimination but which are not unlawful because they fall within the exemptions in Section 41(1) and 41(2) are not kept centrally. But examples would include acts done under statutory authority that discriminate on the basis of residence status--for example, in relation to the charging of fees for attendance at universities, entitlement to education awards, or entitlement to free National Health Service hospital treatment.

Lord Lester of Herne Hill asked Her Majesty's Government:

    What acts of racial discrimination, if any, have been done for the purpose of safeguarding national security, under Section 42 of the Race Relations Act 1976, since the entry into force of that Act.[HL396]

Lord Bassam of Brighton: Section 42 of the Race Relations Act 1976 provides that acts are not unlawful under the Act if they are done for the purpose of safeguarding national security. Records of specific acts taken under this exemption are not kept centrally.

Race Relations (Amendment) Bill

Lord Lester of Herne Hill asked Her Majesty's Government:

    Whether they will specify each of the "immigration and nationality functions" referred to in Clause 1(1) of the Race Relations (Amendment) Bill by describing the nature of each function.[HL328]

Lord Bassam of Brighton: The main functions are:


    the grant or refusal of an entry clearance under the Immigration Rules by an entry clearance officer;


    the grant or refusal of leave to enter or remain in the United Kingdom under the Immigration Rules by an immigration officer, or caseworker, acting for the Secretary of State;


    the grant or refusal of asylum in accordance with the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees;


    the grant or refusal of leave to remain exceptionally outside the Immigration Rules on various grounds, including compassionate circumstances;


    the decision of an immigration officer to proceed against an individual as an illegal entrant, or of the Secretary of State to institute deportation or administrative removal action against an individual;


    the decision to detain an individual under Immigration Service powers; and


    the grant or refusal of British citizenship under the British Nationality Act 1981.

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Lord Lester of Herne Hill asked Her Majesty's Government:

    In respect of which of the "immigration and nationality functions" referred to in Clause 1(1) of the Race Relations (Amendment) Bill they consider that it is appropriate and necessary to discriminate against an individual on the grounds of ethnic or national origins in carrying out such functions; and[HL329]

    In respect of which of the "immigration and nationality functions" discrimination on the grounds of ethnic or national origins has been practised during the past three years.[HL330]

Lord Bassam of Brighton: Some discrimination on the grounds of national or ethnic origin is necessary in any immigration and asylum system. For example, an asylum claim will often rest on the treatment given in the country of origin to a particular national or ethnic group, so that discrimination in favour of individuals from such groups will be required in order to take fair decisions in accordance with obligations under international law. It may also be necessary, in order to manage the process effectively in the interests of all applicants, to give priority from time to time to particular national or ethnic groups, as was done, for example, in dealing with the cases of evacuees from Kosovo during the recent conflict and, at other times, to applicants from certain Eastern European countries making unfounded claims in large numbers.

Unjustifiable Indirect Discrimination

Lord Lester of Herne Hill asked Her Majesty's Government:

    Whether they consider that the concept of non-discrimination, protected by the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention for the Elimination of Discrimination Against Women, forbids unjustifiable indirect discrimination as well as direct discrimination by public authorities.[HL442]

Lord Bassam of Brighton: The texts of the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention for the Elimination of Discrimination Against Women do not define, prohibit or explicitly refer to unjustifiable indirect discrimination. The case-law is sparse and open to interpretation. However, taken with relevant General Comments of the enforcement bodies, there are some suggestions that the concept of non-discrimination in these instruments may, to some extent, include some forms of unjustifiable indirect discrimination.

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Scotland: Impact of Race Relations (Amendment) Bill

Lord Lester of Herne Hill asked Her Majesty's Government:

    Whether they have sought the views of the Scottish Parliament, Scottish Ministers and other interested parties in Scotland, about the contents of the Race Relations (Amendment) Bill and its impact upon areas of devolved competence.[HL444]

Lord Bassam of Brighton: The Race Relations (Amendment) Bill's provisions are for reserved purposes, although some provisions make incidental and consequential changes in devolved areas of law. The Scottish Executive has been consulted and its views sought on the Bill's impact upon areas of devolved competence.

European Committee for the Prevention of Torture

Lord Lester of Herne Hill asked Her Majesty's Government:

    Further to the Written Answer by Lord Bassam of Brighton on 13 December (WA 15), whether they would consent to the publication of the reports by the European Committee for the Prevention of Torture of 1998.[HL445]

Lord Bassam of Brighton: On 20 December 1999, the Government requested the European Committee for the Prevention of Torture to publish its report of March 1998.

General Pinochet

Lord Lamont of Lerwick asked Her Majesty's Government:

    Whether the Home Secretary has at any time written to Mr Valdes, the Chilean Foreign Minister, about General Pinochet.[HL297]

Lord Bassam of Brighton: No.

Lord Lamont of Lerwick asked Her Majesty's Government:

    Whether the version of their reply to the Chilean Government's representations for the release of General Pinochet, as released by Mr Valdes, the Chilean Foreign Minister, was accurate; and [HL318]

    Why the reply given to the Chilean Government in reponse to their representations for the release of General Pinochet cannot be published in this country when it has been published in Chile.[HL319]

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Lord Bassam of Brighton: I understand that the Chilean press has carried reports concerning the contents of this correspondence. Those contents are confidential to the Chilean Government and Senator Pinochet. In the circumstances it would not be appropriate to comment on the accuracy of any press reporting on that correspondence.


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