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Lord Bassam of Brighton : The noble Lord raises a valid consideration--there is no question about it. However, each case must be looked at on its merits. That, too, is an important point and it is hard to generalise from those instances to the particular. It may well be tantamount to a form of direct discrimination, but it will be determined around the circumstances of the case. It is an important point for the future.

Some members of the Committee may ask: what is the problem with what the Government seek to do here? The problem, which I believe was touched on by my noble friend Lady Lockwood, is the unforeseen consequence that the incorporation of indirect discrimination may have for government in the pursuance of certain policies. We cannot predict every circumstance. It would be for the courts to decide whether any government policy with a requirement or condition that had a differential impact on different racial groups was justified. For example, age-based policies such as the New Deal for Young People, winter fuel payments to pensioners or regional or zone-based policies, such as employment and education action zones, could be open to potential challenge through the application of indirect discrimination. Inevitably, different proportions of people would fall within such policies according to racial or ethnic groups--even between ethnic minority groups themselves. Challenges could therefore be made on all sides.

Earl Russell: The Minister suggested the possibility of a challenge under these provisions to winter fuel payments to pensioners. Would the noble Lord care to make an estimate of the statistical probability of such a challenge?

Lord Bassam of Brighton: I am not a statistician and do not possess the infinite wisdom of the noble Earl. I am open to persuasion on that point, and no doubt the noble Earl can provide a fantastic statistical argument.

It is here that we face a particular difficulty. We may face challenges from all sides. While the Government should be able robustly to defend their policies, they would be leaving those matters to be decided by the courts. That point was made by the noble Lord, Lord Cope. Any government would question whether that was right and proper. Moreover, we would have to devote significant resources to the defence of our policies in a way with which the Bill was never intended to deal. Not least, challenges could be brought against policies that helped, aided and assisted ethnic minority communities the most. I do not believe that that is the intention of the noble Lord, Lord Lester, and those who support him.

Nevertheless, the Government accept that public authorities must ensure that their policies, programmes and practices take fully into account the needs of ethnic minorities. As to the functions to be

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covered by Clause 19B, our preference is to achieve this in a positive way by obliging public authorities to promote equality. Our mind however is not closed to the matter of indirect discrimination. The Secretary of State for Home Affairs indicated as much when he and I met Peers as recently as yesterday in the Moses Room. We shall keep this matter very carefully under review.

On the basis of the arguments this afternoon, I hope that the noble Lord, Lord Lester--

Lord Peston: Before my noble friend sits down, does he intend to deal with the international point which to me, as a layman, completely destroyed the position of the Government? I thought that my noble friend would provide some counter to that terribly important intervention, or would at least write to members of the Committee to explain it.

5.45 p.m.

Lord Bassam of Brighton: It was a very important intervention but it is not one that I wish to cover this afternoon. It is a matter to which I am happy to return, and no doubt we shall correspond on the issue.

I intended to deal with one or two particular points raised by members of the Committee during the debate. The noble Lord, Lord Avebury, asked about the treatment of gypsies by the police. If a person who falls within that category (if one uses that term) is treated by the police less favourably than another in the same circumstances on the grounds of his racial group, in the Government's view that is direct discrimination which is covered by the current legislation. That would be so if one was talking about the provision of services and in these new circumstances it would be covered by the legislation.

The noble Lord, Lord Lester, referred to religious discrimination in the context of Muslims. The Government are very aware of the concerns that have been expressed on this issue. A recent debate took place in this Chamber on the whole issue of religious discrimination. It is not our intention to cover that issue in this piece of legislation. That matter raises many difficult, sensitive and complex questions. As we made clear at the time of that debate, there is no quick fix solution. However, as most members of the Committee will be aware, we have commissioned research into this issue from the University of Derby which we intend to publish later in the year.

Lord Lester of Herne Hill: As I recall, the debate to which the Minister refers was initiated by the noble Lord, Lord Ahmed. Is it not the case that the Government's defence to the charge that they should have introduced legislation to combat religious discrimination was that it was covered by the concept of indirect racial discrimination under the Race Relations Act? Therefore, since the Government have not introduced legislation to deal with religious discrimination, is it not correct that the only way in which British Muslims can be protected is by the

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Government making themselves liable for indirect racial discrimination against members of that community?

Lord Bassam of Brighton: The noble Lord is in part right. But these matters are very complex and it is important to look separately at the issue of religious discrimination. I understood that that was the point to which the noble Lord alluded in his earlier comments.

The debate has been wide ranging, and I have found it very stimulating. A number of important and telling points have been made during the course of the debate this afternoon in Committee. There is much for the Government to reflect upon. Our minds are not closed in this matter; it is something on which we wish to reflect. On that basis, I invite the noble Lord, Lord Lester--my noble friend Lady Howells also made a very telling speech in this debate--to withdraw his amendment.

Lord Lester of Herne Hill: We are grateful to the many members of the Committee who have taken part in a remarkable debate full of confessions, revelations as well as moral and legal principles. I have a confession to make. I have not been stopped by the police. No doubt that is a pleasure ahead of me. I recall that when I worked with the Campaign Against Racial Discrimination in the 1960s I was most indignant when Afro-Caribbean members said that they were not really concerned about employment or housing discrimination but their dealings with the police. In those days as a young barrister I thought it quite outrageous, as did the noble Lord, Lord Mackenzie, that such a view should be so prevalent. I was wrong in those days.

The amendment is not concerned mainly with the police. Many of the examples given by noble Lords have related to direct, not indirect, discrimination as far as concern the police because they have been about prejudice and stereo-typing. In that sense the Government are quite right. However, as the noble Baroness, Lady Lockwood, pointed out, it is very hard to tell the difference between direct and indirect discrimination, as any practitioner in the field knows. That is why complainants normally begin by making complaints of both direct and indirect discrimination. It is only when the facts are uncovered that one is able to tell which is which.

I defy the Minister to explain to the Committee the difference between unwitting direct discrimination and unintentional indirect discrimination. I believe that I could pass the exam, but I bet that he and 99 per cent of the Members of this House could not. I can do so only because I have been arguing with Law Lords on the subject in several cases. It is about purpose, causation, impact and effect and all of those matters are mixed up together.

I am sorry that the noble and learned Lord, Lord Ackner, is not still in his place as he was earlier in the debate. Some years ago I heard him ask the luckless Attorney-General of Mrs Thatcher's government whether in his view the maxim "think before you speak" was incompatible with good government. I

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adapt the question then put by the noble and learned Lord, Lord Ackner. I ask the Minister and his colleagues: is the maxim "think before you act" incompatible with good government? The concept of indirect discrimination seeks to say to the Government that they should not just think about policy formulation but think before they implement that policy, about its effect on vulnerable groups and make sure that they have some justification.

The Minister's main point is that it is inconvenient for the administration to have to answer for the effect of their policies in courts of law. No doubt that is true. No doubt power is delightful; no doubt absolute power would be absolutely delightful; no doubt, also, if there were no judicial review of public administration that would be most convenient for Ministers and civil servants. But, happily, we live under the rule of law and that includes the rule of international law.

One of the most significant contributions was that of the noble Viscount, Lord Colville. He, after all, is a member of the Human Rights Committee which polices the International Covenant on Civil and Political Rights. I wrote to the noble Lord the Minister on 22nd December and said:


    "I look forward to receiving your letter answering the various points that I raised in the course of the Second Reading debate, including the Government's reasons for considering that the exclusion of the concept of indirect discrimination is compatible with the UK's obligations under international and EC law".

Part of international law is the law of the covenant, of the Convention for the Elimination of Race Discrimination and of the European Human Rights Convention and, of course, part of European Community law. We have received no answer to that. I have dealt with it in the note I have placed in the Library. I do hope that we receive an answer because the Government have been given a solemn warning by a distinguished member of the Human Rights Committee. There are only 18 members. The Human Rights Committee is a most prestigious and important committee of eminent jurists. The British member has told the House today--we are the ones who have the international obligation to comply with the covenant, as do the Government--that in his view the argument put forward by the Minister for the Crown being above the law relating to indirect race discrimination is not compatible with Article 2 and Article 26 of the International Covenant on Civil and Political Rights. How then can Ministers of the Crown come forward to this House with legislation unless they are satisfied to a proper standard that what they are doing, and advising the House to do, is compatible with our international human rights obligations?

The paradox of the entire debate is that really we thought we had covered all this in 1976 in Section 20 of the Race Relations Act. This Government are apparently going backwards to before the decisions that were taken by the noble Lord, Lord Jenkins of Hillhead, and his colleagues in the Wilson government. We are planning to go back behind that on the basis of what I think is a misconceived majority decision.

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If I were to seek to test the opinion of the Committee now, I am confident on the basis of the speeches that have been made, if they were reflected in the Division Lobby, that there would be an overwhelming majority against the Government. But I am comforted by the Minister saying that the Government have an open mind. It is much better if we can resolve these questions amicably without the need to use that kind of voting force. I have heard nothing to suggest that the public administration would do other than benefit from the sunshine that comes when it has to justify its policies to an independent third party, the judiciary.

I hope very much that everyone will reflect on the debate and on all the points that have been raised. Meanwhile, I beg leave to withdraw the amendment.


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