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Lord Avebury: Before the noble Lord sits down, let us suppose that he agrees to this amendment, or something very similar to it, giving effect to the principle set out in it, would the words used in his letter of 22nd December to my noble friend no longer apply? He commented that,


To come back to indirect discrimination, the noble Lord was arguing that these challenges could be mounted if my noble friend's amendment were passed. If he is now saying that he will accept something like the amendment now before the Committee, would that not remove the objection that he made to my noble friend's earlier amendment?

Lord Bassam of Brighton: It is a point to be thought through when we consider, as we said we would, the amendment. I am not sure that I can entirely agree with the point made by the noble Lord, Lord Avebury. These are complex issues. There is a complex interrelation between all of these various points--whether it is about positive action, indirect or direct discrimination, and the way in which we make use of those in law to change the atmosphere of race relations in this country. We are entirely happy and comfortable with taking the amendment away. We want to give it

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careful consideration. We are open to further discussion on it, publicly and privately. We invite the noble Lord to withdraw the amendment on that basis.

Lord Lester of Herne Hill: We are delighted and grateful. On that positive note, I speedily beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Elton): Before calling Amendment No. 10, I must advise the Committee that if it is agreed to, I shall be unable to call Amendment No. 11.

Lord Lester of Herne Hill moved Amendment No. 10:


    Page 2, leave out lines 22 to 25 and insert--


("(1) Nothing in section 19B shall render unlawful any act done by a relevant person in carrying out immigration and nationality functions in affording persons of a particular nationality, religion or ethnic or national origin special treatment on humanitarian grounds.").

The noble Lord said: New Section 19C creates a blanket exemption for any directly discriminatory act in relation to any of the wide range of immigration or nationality functions carried out against another person on grounds of nationality, or ethnic or national origin, by a Minister or by officials acting in accordance with the relevant authorisation. That section, which was much debated during the Second Reading of the Bill, delegates considerable power to the Government, by-passing the need for parliamentary approval of racially discriminatory practices and procedures. For the reasons that were debated fairly fully at Second Reading, it has caused great concern, especially among ethnic minorities in this country.

The amendment narrows the ability of the immigration and nationality service to discriminate by limiting it to an act done,


    "by a relevant person in carrying out immigration and nationality functions in affording persons of a particular nationality, religion or ethnic or national origin"--

those words come from the international treaties to which we are signatories--


    "special treatment on humanitarian grounds".

If the Home Office wishes to make special arrangements aimed at providing protection for particular groups seeking shelter in the United Kingdom, such as the Bosnians and Kosovar Albanians who were granted exceptional leave to remain during the recent crisis in the Balkans, it is difficult to understand how that would require any exceptions. We understand from previous contributions by the Minister that that is the main problem with which the Home Office seeks to deal. The reason for affording favourable treatment to some of those groups is surely not based on their ethical or national origins but on their well-founded fear of persecution, the urgency of their humanitarian needs and the need to comply with the United Kingdom's obligations under the refugee convention. The policy

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is not based on, and is not caused by, their ethnicity. It is not because of Muslim, Kosovar, ethnic or religious origins but for the reasons I have just given.

In the United Kingdom's 14th report to the committee dealing with the convention on the elimination of racial discrimination, the Government said that there is nothing racist about designating countries which produce large numbers of unfounded asylum applications. I respectfully agree. There is nothing racist about it. It is not based on colour, race or ethnic or national origins. The same is true of refugee situations if humanitarian provision is made not on the basis of ethnic or national origin but on an objective assessment of the conditions in the country concerned.

Again, we are in the area of international human rights law where we are unaided at present by any statement from the Government on their views about our international treaty obligation. However, in my respectful submission--it is derived in part from Professor Goodwin-Gill who is the leading international refugee legal expert in this country and author of a major book on the subject--new Section 19C as it stands is not consistent with the United Kingdom's international obligations. It is not consistent with Articles 2, 5 or 6 of the convention on the elimination of all forms of racial discrimination. As the noble Viscount, Lord Colville, indicated in a different context, it is not consistent with Articles 2 and 26 of the international covenant on civil and political rights. Article 3 of the Convention Relating to the Status of Refugees 1951 obliges contracting states to apply the convention's provisions to refugees without discrimination as to race, religion or country of origin. That covers discrimination on the grounds of a refugee's ethnic or national origins.

The UNHCR's executive committee, of which the United Kingdom is an original member, has, as Professor Goodwin-Gill points out, emphasised that decisions on asylum must be made without discrimination as to race, religion, political opinion, nationality or country of origin.

We all agree with the Home Office that in exercising immigration control one has to draw distinctions which are based, for example, on the nationality of particular people seeking to enter this country. That is not the issue here. We are concerned with the taking of a power which is not in the 1976 Act, even though the 1976 Act already has the powers provided in Section 41. We are concerned with the power to allow the Home Office to discriminate not only in any immigration decisions but also in nationality decisions on the basis of a person's ethnicity. Nothing could do more harm to the reputation of the immigration and nationality service in this country than to give the impression to the ethnic minorities in this country that we are discriminating at the gate, or conferring British nationality and citizenship because of people's ethnicity. I am sure that that is not what we do. Were

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we to do so, we should be condemned by all the international bodies for breaching international human rights law.

Section 41(2) of the Race Relations Act 1976 states:


    "Nothing in Parts II to IV shall render unlawful any act whereby a person discriminates against another on the basis of that other's nationality or place of ... residence or the length of time for which he has been present or resident in or outside the United Kingdom ... if that act is done (a) in pursuance of any arrangements made (whether before or after the passing of this Act) by or with the approval of, or for the time being approved by, a Minister of the Crown; or (b) in order to comply with any condition imposed ... by a Minister of the Crown".

Those words were carefully inserted because the immigration and nationality department wished to have them there to give it the freedom that it needed in exercising its public functions. That is why they are in Section 41. I do not understand that there has been any change of circumstances since 1976 to require any wider authorisation to be given than that in Section 41. It is carefully controlled in Section 41 so that it cannot be abused.

My amendment is designed to give extra cover without going so far as to authorise discrimination based on ethnicity in immigration or nationality decisions. We very much hope that the Government will be as open minded about this amendment as they were on the previous one. I beg to move.

6.15 p.m.

Lord Cope of Berkeley: Amendment No. 11 standing in my name is not grouped with Amendment No. 10. However, it goes to a closely related point which, to a certain extent, the noble Lord has already argued. Unless any Member of the Committee objects, I think that it would be convenient for me to discuss it with Amendment No. 10.

I believe that this is one of the areas--we referred to them at the beginning of our debate today--where we need a clear statement of the Government's view of the international obligations and how they impinge on the immigration and nationality aspect of the Bill. I hope that the Minister will be able to assist us with that.

In immigration and nationality functions we discriminate between people on the grounds of their nationality. I believed that this clause was necessary in order to preserve the ability to do so without the danger of it being challenged. To expand the point slightly, we allow European Union citizens access to this country on a freer basis than those from further afield. One has only to go to Heathrow or any other port to see the different arrangements for EU citizens compared with those from other countries. That is discrimination on the basis of nationality and sometimes national origin.

However, as far as I am aware, we do not distinguish on ethnic origin grounds. It would be offensive if we said to someone from a particular country, "It is not your nationality that makes the difference between whether we do or do not admit you, while we treat differently this other person who is similar to you. It is because of your ethnic origin: because you come from this specific part of the population of your country".

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That is why I tabled Amendment No. 11, but there is a misprint in the Marshalled List. It charmingly translated "ethnic" as "ethic". I do not believe that anyone will be misled because the amendment seeks to leave out a word in the Bill. The right reverend Prelate will be relieved to know that I do not intend to go into the questions of ethics or religious grounds. Sometimes religion and ethnic minority are taken as a proxy for one another, not least in Northern Ireland. However, the dispute there is not religious, although it is sometimes expressed in those terms. As regards immigration and nationality functions, religion does not and should not come into the matter, nor should ethnic origin.

Unlike the noble Lord, Lord Lester, I am not an expert, so I may be told that examples of discrimination on the grounds of ethnic origin already exist in our treatment of immigration and nationality issues. If so, I shall not press the amendment. However, that is not a sound basis on which to discriminate and in this clause we should not preserve it as a lawful function.


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