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Lord Bassam of Brighton: The effect of the amendment would be to remove the existing proposed exemption. The effect of the amendment tabled by the noble Lord, Lord Cope, would be to narrow the scope of the exemption to Clause 1. I shall deal with both amendments and comment on our international obligations.

We believe that it would remove the existing proposed exemption for immigration and nationality functions and replace them with a much narrower provision covering special treatment on humanitarian grounds. When we met in December to discuss these issues, the noble Lord made clear to me his view that the existing legal safeguards in the Race Relations Act 1976 should be sufficient to allow the immigration system to continue to operate effectively. He repeated that argument today. I understand that this amendment has been tabled for the avoidance of doubt in respect of the Bill's application to humanitarian exercises.

As I have made clear, the Government believe that the Race Relations Act has made a tremendous contribution to our society, and I repeat the tributes paid to its architect, the noble Lord, Lord Lester. We sympathise with the objective of ensuring that the Bill does not outlaw special treatment for those in need of protection on humanitarian grounds, such as the recent special exercise in relation to Kosovan Albanians. But we do not believe that the proposed amendment would provide adequate legal protection for the immigration system as a whole. That is the important point.

The operation of immigration policies necessarily and legitimately involves differential treatment between individuals based on their nationality and, more rarely, their ethnic or national origins. In our view, the existing exemption for immigration and nationality functions strikes the right balance between providing victims of unlawful direct discrimination with an effective right of action and protecting

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necessary discriminatory activity in the exercise of immigration functions which is required or authorised by Ministers or by legislation.

The pressures on the immigration system, of which noble Lords will be well aware, are such that we cannot allow any ambiguity to arise in relation to the application of this legislation to immigration staff. We know from experience that the immigration and asylum system, including the appeal system, is frequently used by those with an unfounded claim who are seeking to delay and frustrate the process. That is why we took firm action in the Immigration and Asylum Act 1999 to streamline the process to produce a fairer, firmer, faster system.

This Bill must make it crystal clear what is unlawful and what is permissible in the public interest. We believe that the existing formulation in Clause 1 (new Section 19C) does so. Activity which is authorised or required by law or by Ministers will be lawful, as will be personal decisions taken by Ministers in the public interest. Unauthorised acts of direct race discrimination will be unlawful, and the Government will have no hesitation in dealing very firmly with them.

Failure to provide clarity in this legislation would be unwise, both as an act of policy and to ensure that staff are fully protected when they carry out the duties Parliament and Ministers have laid upon them. The Government do not share the noble Lord's confidence in the adequacy of the existing legal safeguards provided by the Race Relations Act. Section 41 of the 1976 Act protects discriminatory acts which are carried out "in pursuance to" statutory provisions or ministerial arrangements. But the courts have adopted a very narrow interpretation of "in pursuance to". For acts to benefit from Section 41 they must be actually "required" by law.

However, the operation of the immigration system necessarily requires the exercise of discretion by Ministers and by appropriately authorised officials in accordance with published, transparent instructions. For example, the Immigration Service at ports requires the ability to target and prioritise certain nationalities for particular scrutiny where it has intelligence that particular national travel documents are being abused or where there is intelligence that individuals or groups of one nationality are presenting themselves as the nationals of another country in order to benefit from compassionate policies or asylum procedures. There is chapter and verse on that. There are many such examples of such activity.

The Immigration Service and Integrated Casework Directorate need the ability to carry out special "nationality specific" exercises involving the fast tracking of cases and even the use of detention in response to sudden or sustained influxes of certain nationals, most recently from eastern Europe, seeking to circumvent the control. Entry clearance officers need the ability to treat individuals differently on various grounds. Examples include if their country is associated with state-sponsored terrorism or has a track record of hostile intelligence activities or if their

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country is known to have lax or inappropriate passport issuing arrangements. Such activity is a necessary part of operating the immigration system but may not be considered by the courts as strictly required by law.

There are also many examples of where the immigration system discriminates positively in favour of individuals on the basis of their nationality or ethnic or national origins. One example is the special treatment for Kosovan Albanians during the recent conflict in the Balkans. Kosovan Serbs were not treated the same way, for entirely understandable reasons. There are other examples where guidance to asylum caseworkers directs that the one ethnic or national group from a particular country should be treated differently from another. For example, our policy in relation to persons originating from Bosnia-Herzegovina is to grant exceptional leave where the applicant's ethnic group is no longer in the majority. A Bosnian Croat originating from a Serb area would not be expected to return there, nor would a Bosnian Serb originating from a Muslim area.

Current asylum policy makes a distinction between Kosovan Serbs and Kosovan Albanians where the basis of claim is ethnic origin. The former are a minority and may qualify for asylum, while the latter may be refused and returned. The ethnic or national origin of the applicant in cases involving various other nationalities is also a key consideration in the determination of applications for asylum. It would be impossible to operate a rational asylum determination process if caseworkers were unable to make such distinctions. That is why the Bill makes it clear that discriminatory activity which is required or authorised by law, or by Ministers, cannot be considered to be unlawful.

Lord Lester of Herne Hill: Before the Minister does so--I am grateful to him for giving way--he has not yet given a single example of discrimination based on a person's ethnicity as distinct from all the other considerations. We are dealing here with only direct discrimination, not indirect discrimination. I should like to know from the Minister whether there is any example where a person's race--that is what ethnicity is about; it is a part of race--is the basis for treating him worse than someone else. Perhaps I may give an example: the infamous one of the British Asians from East Africa who were refused entry to this country by Mr Callaghan's government by statute. That was held by the European Human Rights Commission to be inherently degrading treatment because it was based on their ethnicity.

Under the Bill as it stands there is nothing to stop the Home Office refusing to allow British Asians from East Africa in a similar situation coming here, not on the basis of their colour but of their ethnicity. Surely that is not what the Minister has in mind and surely the Home Office would not dream of discriminating against someone on the grounds of their ethnicity? If

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that is indeed the case, will the Minister please give some examples of where they have done so? I personally should be deeply shocked if that was so.

Lord Cope of Berkeley: Before the Minister responds, I agree with what the noble Lord, Lord Lester, has just said. It did not seem to me that the examples given by the Minister of Kosovar Albanians or Serbs were based on their ethnicity but on their genuine fear of prosecution. That is, after all, what asylum is supposed to be based on. Therefore, those examples do not answer the questions which I asked.

6.30 p.m.

Lord Bassam of Brighton: I should probably beg to differ, but I am open to looking at the matter further. Perhaps it would be wise for me to reflect more on the point which has been made and reiterated. We take the view that the cases of the Kosovar Serbs and the Kosovar Albanians are exact examples of why positive discrimination may be necessary. That is why, in those instances, we believe that the way in which we have begun to phrase the legislation is right. However, I shall reflect more on the comments made by the noble Lord in his intervention.

I turn to our international obligations. The noble Lord suggested that the exemption for immigration and nationality functions would breach this country's international obligations under the UN Convention Relating to the Status of Refugees, the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. The entitlement to immigration, asylum and nationality applicants is detailed in the immigration and nationality enactments listed in Clause 1 of the Bill and in subordinate legislation such as the immigration rules.

The exemption does nothing in our view to rescind or restrict rights or entitlements provided in existing legislation; it simply allows that legislation to continue as Parliament, in our view, intended. It also provides the immigration authorities with the necessary latitude to conduct their business rationally, including targeting resources where there is a concerted attempt to abuse the control or where there is a compelling need for special treatment for a particular group on humanitarian grounds. The exemption does not require Ministers to do anything contrary to their international obligations. The discretion which it gives to Ministers still has to be exercised bearing in mind their international obligations. We believe that to be an important point.

It is clear that these are difficult issues. The Home Secretary and I are grateful to the noble Lord for meeting us. He has enormous experience in the field and we are happy and pleased, as ever, to acknowledge that. Having said that, we feel on reflection that we need to maintain the safeguards set out in Clause 1 in relation to immigration and nationality functions. The noble Lord may not agree, but on the basis of what has been said, he should feel able to withdraw Amendment

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No. 10. The same perhaps applies to Amendment No. 11 tabled in the name of the noble Lord, Lord Cope, which has a similar effect.

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