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Lord Lester of Herne Hill: I did not want to put on further pressure than I have already because I know that a member of the noble Lord's Private Office indicated just after lunch that he had misunderstood. There has been some kind of error inside the administration. That is perfectly understandable. As long as we get the information before Report stage, not at Report stage, we will be in a better position. So if I may, I shall not pursue that further at this stage.

I turn to Amendment No. 1 which deals with what, on the face of it, seems to be a technicality with which I can deal briefly. It seeks to define "public authorities" for the purpose of the Race Relations Act in the same way as the term is already defined in the Human Rights Act, rather than by using a prescribed list of public authorities, to be added to from time to time in a schedule.

Unlike the Data Protection Act 1998, the Freedom of Information Bill and some of the devolution legislation, the Human Rights Act defines a public authority in broad terms to include any person certain of his functions or functions of a public nature. The noble and learned Lord the Lord Chancellor, in introducing that part of the Human Rights Bill, explained:


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He later commented at col. 808 that the principle was deliberately broad,


    "because we want to provide as much protection as possible for the rights of individuals against the misuse of power by the state".

The Race Relations (Amendment) Bill implements one part of the European Convention on Human Rights which guarantees non-discrimination in the enjoyment of other convention rights; for example, the right to education; the right to liberty without arbitrary arrest and stop and search; the right to a fair trial; the right to property, including the allocation of social security in some contexts, and so on.

Under Section 6 of the Human Rights Act, a public authority defined in the very broad way that I have described has a duty to comply with the human rights convention as regards non-discrimination. It is therefore essential to have a definition in the Race Relations (Amendment) Bill which captures all public authorities which would be captured by the Human Rights Act 1998; otherwise, there will be a gap. If in any part of the list prescribed by Ministers under the schedule there is a public authority that is not a public authority for the purposes of the Human Rights Act there will be a gap. Litigation will be required to try to fill the gap and--God forbid--a case may be brought before the court in Strasbourg if that gap is not properly filled. There will be a great deal of legal uncertainty. There is no reason in principle why the same definition in the Human Rights Act should not be used in this Bill.

We may be told by the Minister that that is not the way it has been done in the Data Protection and Freedom of Information Bills because the Government want to achieve legal certainty by listing public body by public body exactly which is caught. But the price of such legal certainty is over-specificity. Unless one lists comprehensively every single public authority that exercises functions of a public nature, the Government are bound to leave out of account some bodies that are meant to be caught by the European Convention on Human Rights and the Human Rights Act. Therefore, the purpose of this and the related amendments is to bring the definition into line with the Human Rights Act. I beg to move.

3.15 p.m.

Lord Cope of Berkeley: I have sympathy with the complaint made by the noble Lord, Lord Lester, at the start of his remarks about the lack of reasons from the Government about compliance with the ECHR. I should like to add two comments. No doubt in the course of the Committee stage we shall, with the assistance of the Minister, be able to draw out the reasons. I agree that that is less satisfactory than being allowed to see them in advance, but we shall attempt to do that. I should also like to express gratitude to the noble Lord, Lord Lester, for his helpful courtesy in circulating not only the note that has been placed in the Library but also other material in support of the views that he intends to express.

I turn to the amendment itself. At this stage I should like to put two questions to the Minister. First, why has the Home Office chosen this rather cumbersome

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way to define "public authorities" in comparison with the rather neat way that is adopted in the Human Rights Act? Secondly, what is the practical difference? Who is to be left out of the one but included in the other? As to the first question, I do not believe that to follow one course of action--to set out in the schedule all the departments and so on--is merely a stylistic preference. This cumbersome formula must have been chosen deliberately, I assume by Ministers. No doubt officials advised Ministers that this was the best route to take, but from the start Ministers would have been aware of the definition in the Human Rights Act and that this matter would be controversial. It seems to me that to follow the more cumbersome route rather than the neater one suggested by the amendment is a rather odd decision.

That leads me to the second question: the difference in practical terms. Do the Government believe that, arguably, departments, agencies or public authorities of some kind should in that way be deliberately left out of the Bill for some reason? I realise that subsection (5) provides for a future extension to cover additional departments if that should arise either from reorganisation of government, which happens all too frequently these days, or because something has been inadvertently omitted. To legislate in this way is unsatisfactory. There are now far too many statutory instruments. We have reached the stage where in most cases looking at an Act as passed by Parliament is not much use; one must look at the annotated Act with all the statutory instruments in footnotes, et cetera. There are so many statutory instruments that unless one looks at the latest version one cannot be sure that one has the law as it is. Obviously, that is good for legal publishers and those who write legal textbooks--perhaps some Members of the Committee are concerned with that--but from the point of view of the public who need to know the law and those who try to run businesses and other operations, including lawyers, but not necessarily because it is such a complex field, I do not believe that this is the most satisfactory way to compile the statute book.

One of the differences between the two definitions is that one leaves marginal decisions in the hands of the courts if one follows the human rights route. If there is a question as to whether some body may or may not be included in the provisions, that decision will be left to the courts. That takes one back to the point about legal certainty to which the noble Lord, Lord Lester, referred. But to achieve it in this way has other dangers. I believe that the Committee will be greatly helped if the Minister can set out the practical effects of doing it this way, in terms of the number of departments included or left out, and explain why the Government have chosen this particular route.

Lord Avebury: Before the noble Lord sits down, does he agree that in any case the question of whether or not a body is a public body must be dealt with by

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the courts under the Human Rights Act? If there is no difficulty under that Act, equally there cannot be under this Bill.

Lord Cope of Berkeley: Any of these matters is liable to come before the courts. Under the Human Rights Act, such matters are now liable to come before the courts in this country, but they can in any case come before the courts on the Continent.

Lord Peston: Perhaps I may be permitted to put one question for clarification so that I may follow the debate. Am I correct in understanding that at the moment we are debating only the set of public authorities which will fall within the ambit of subsequent provisions and we are not yet considering what those public authorities should do and how they should behave? We are almost artificially separating the public bodies from their modes of behaviour. Am I right to interpret the contribution of the noble Lord, Lord Lester, as dealing with that point?

Lord Lester of Herne Hill: If I may help the noble Lord, Lord Peston, that is exactly right. At the moment we are dealing with how one defines which public authorities will be liable for the extended duty rather than the scope of the duty in substance and choosing between an inclusive and an exclusive definition.

Baroness Howells of St Davids: I should like to speak in support of Clause 1 of the Bill and the amendments to which I have put my name. I thank my noble friend the Minister for the very constructive way in which he and his colleagues have conducted the debate so far.

At Second Reading, your Lordships may recall the debt of gratitude I conveyed to the Government for having the courage to set up the inquiry into the death of Stephen Lawrence and for their actions to date. As we know, the Government went further than the recommendations made in the report in committing the Government to bring all public services within the law. This Bill shows that the Government have delivered on what they said they would do. I expressed my gratitude to the Government for indicating that they had not closed their mind to widening the scope of the Bill to cover unjustifiable indirect discrimination if they could be persuaded that its inclusion would be workable.

I am pleased that the Government have kept to their word, have been open to alternative views and have listened to ways in which this Bill can be improved. I am aware that my noble friend the Minister has met a number of individuals from both inside and outside this House to discuss ways in which the Bill can be improved. I should like to commend him on that.

I too want the Government to get this Bill right. It is in that spirit that I put my name in support of the amendments tabled by the noble Lord, Lord Lester of Herne Hill, and other noble Lords. The noble Lord, Lord Lester of Herne Hill, has dealt with the legalistic aspects of these amendments with the authority of one

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who has been one of the main architects of the Race Relations Act and who has spent many years working in the field of human rights law.

I support wholeheartedly the other aspects of Clause 1, including the alternative definition of "public authority". I should also like to focus on the omission of indirect discrimination. That is the main defect of the Bill, as far as I am concerned. I do not have the authority of either a lawyer or a medical person, but I can speak with some authority on this issue, having worked with ethnic minority communities. I should like to draw on that experience in my comments. The Committee may be aware that I have worked in the field of race relations for more than 30 years. My personal knowledge has been crucial in my approach to the Bill. In particular, the connection of the Macpherson inquiry report with unjustifiable indirect discrimination in the police force was central to my decision to support these amendments this afternoon.

The Committee will be aware that the focus of the Macpherson report was the prevalence of institutional discrimination. By omitting to outlaw unjustifiable indirect discrimination in critical functions of public authorities, the Bill seriously inhibits the ability of families like the Lawrence family to challenge institutional racism in future.

The defining feature of the Macpherson report was the acceptance that institutional racism is commonly indirect. I should be grateful to know from my noble friend the Minister whether the Government have come to a different conclusion because I am at a loss as to how any other conclusion could be found. I must say that I have not been convinced by the Home Office briefings that suggest that the Lawrence case concerned direct discrimination. The disastrous failure to bring the killers of Stephen Lawrence to justice stemmed from attitudes and practices in the investigation of the crime which could have played a similar part in many other investigations into the deaths of other black people, such as Michael Menson and Ricky Reel. Direct discrimination was not established in any of these cases.

Extending the law to deal with indirect discrimination in the private sector was the great innovation when the present Race Relations Act was passed in 1976, reflecting the growing recognition that it was the hidden, often unconscious, kinds of discrimination which were the most insidious and widespread. To expose these the Act gave enhanced investigative powers to the Commission for Racial Equality. Unless indirect discrimination in our public authorities can also be targeted, the Commission for Racial Equality will be unable to carry out the very type of investigation that the Macpherson report showed to be needed.

If the Race Relations Act had from the outset fully covered the direct and indirect discriminatory aspects of public authorities, the Commission for Racial Equality could have conducted a formal investigation into operational policing some years ago. I have no doubt that we could have started to tackle institutional

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racism in the police and been in a position to make less likely the kind of insidious covert forms of discrimination that the Lawrence family and others have experienced.

The Macpherson report established in the mainstream the concept of institutional racism. I am at a loss as to why the Government are now hesitating on the opportunity presented by that report to put a legal framework in place which will allow the sort of unjustifiable indirect discriminatory practices raised in that report to be challenged.

The Home Secretary has asked for a workable solution. Clause 1 strikes out the omission extending Section 1(1) (b) of the Act to public authorities. If it were the case that the Government remained less than fully convinced of our arguments to include unjustifiable indirect discrimination, could they not decide to add an extra control by requiring that all such cases of alleged indirect discrimination contrary to the proposed Section 19B were brought only with either the approval or assistance of the Commission for Racial Equality? It could be argued that this would be consistent with the Commission for Racial Equality's strategic role.

I believe that the focus of the Government's concerns should not be on excluding Section 1(1)(b) of the Act but on addressing what are to be the areas of justification or defence under the Act. To reiterate the point, indirect discrimination is unlawful only if it cannot be justified. I cannot believe that it is the intention of the Government to allow unjustifiable indirect discrimination in our public services to continue, especially when it has been unlawful in the private sector since the 1970s.

The Commission for Racial Equality has approached Robin Allen QC, an eminent human rights counsel, for an opinion on the Bill. I understand that his opinion will be made available to the Government. In that legal opinion, Mr Allen discusses the possible future implications arising from Europe if indirect discrimination is excluded from the Bill.

Your Lordships will be aware that the case law of the European Convention on Human Rights and the European Court of Justice makes it clear that the concept of discrimination in convention and Community Law is not limited to direct discrimination. Both recognise that there may be situations in which disguised or indirect discrimination may arise and may need to be justified. Accordingly, any limitation in the extensions to be made by the Bill to the Act to "direct" discrimination or victimisation are likely to rub up against either Community or convention law sooner or later. In those circumstances, Mr Allen says:


    "unless the limitation is itself objectively justified, the provisions of the Act (so amended) will have to give way sooner or later to these superior sources of law".

While I, too, recognise the concerns of the Government about the need to justify policies that have an adverse impact, surely this is no more than the obligation on any modern, democratic government based on human rights.

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The Home Secretary said in another place in February last year that he acknowledged that there was a long way to go to make Britain a "beacon of equality" and he made it clear that the Government must and will do more. The very limited scope of the new Bill could be a missed opportunity for more far-reaching reform and disappoint the reasonable expectation he created last year.

I should like to assist the Government to make Britain truly a beacon society for the rest of the world to follow. We want to help the Government to deliver comprehensively now and out of conviction. I do not want the Government to be forced to deliver in a piecemeal fashion, some time in the future, out of fear of legal challenge from Europe.

I will be hard-pressed to find people from ethnic minority communities who are content that unjustifiable indirect discrimination has been excluded from the Bill. That may be because we in the black community have lived and experienced institutional racism in our public authorities on a daily basis. Any half-way or partial measure could be received as a mockery of those experiences.

I say to my noble friend the Minister that Britain's ethnic minorities do not understand the Government's hesitation in taking this opportunity seriously to challenge institutional racism. I know that the Government will want to be the champion of their hopes and aspirations. The Bill has the potential to be one of the Government's flagship Bills. But I fear that if we miss this opportunity we will not only have taken the shine off the beacon society we all so dearly want; we may have missed that opportunity for perhaps another generation. I support Clause 1.

3.30 p.m.

The Earl of Onslow: I support the noble Lord, Lord Lester. I rise to speak from what could be regarded as an old-fashioned Conservative point of view, something which our present lord and master finds deeply offensive. But I shall let that pass. To me the issue is simple. If you expect people to be loyal subjects of the Crown, they should all be treated equally. We have been a welcoming society for a very long time. You do not have to go all that far back to see the enormous contribution made to our country by some of the Ugandan Asians. You do not have to go very far back to see the great contribution which a large number of Caribbean people have made for the benefit of the United Kingdom. Therefore, it follows, as night follows day, that they have to be treated equally before the law so that they can become loyal subjects of the Crown. If we say, as the amendment says, that no one may discriminate, it is much clearer than saying, "Only X, Y and Z may discriminate, and the Secretary of State may alter it afterwards".

We want race relations in this country to be good. From a Conservative point of view I want it, because I recognise the contribution made by the Huguenots, by the Jewish immigrants in the 1890s, by the refugees from Hitler's Germany and by the Ugandan Asians. They have all enriched our society. Therefore, they

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have to be treated equally and they have to be treated as loyal subjects of the Crown. The amendment would make it much easier for that to be the case rather than the Secretary of State, by order, altering the list of who may or may not discriminate. I therefore support, from a Conservative point of view, the point raised by the noble Lord, Lord Lester of Herne Hill.


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