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Lord Bassam of Brighton: I can see why the noble Lord may be concerned. He is helpfully drawing attention to the different quality of tests that may apply in each of the subsections. I am happy to reflect further on the way in which those tests may operate, on their interrelationship and on how they may work. If the noble Lord is happy to withdraw his amendment today, I am happy to agree to look further at the wording so that there is consistency of application in this area where there may be good cause to have that kind of consistency.
Lord Lester of Herne Hill: I am happy to withdraw the amendment in the hope that the Home Office will think carefully, not only about the debate, but also about Articles 6 and 14 of the convention on human rights on the right of effective access to justice.
Lord Cope of Berkeley: Before the noble Lord actually withdraws the amendment, he should give some thought to the question of which is the tougher test in the circumstances. In the subsection (4E) case, where the criminal proceedings have not been started--indeed they have not even been decided upon and the investigation is continuing--it would be extremely difficult to prove that a civil action would definitely be prejudicial. Inevitably, it is a little more unlikely. That is why the words "might prejudice" are in there, whereas the test in subsection (4D), which is expressed the other way around, says "would not prejudice".
Lord Lester of Herne Hill: I shall not prolong this matter, but perhaps I can make my concern clear. The starting point is the common law right and the convention right of effective access to justice for the remedy for unlawful racial discrimination. That is the starting point. That has to be balanced against the
Lord Goldsmith: Would my learned friend--sorry, that is my day job--would the noble Lord consider that new subsection(4E) does not impose an obligation on the court to stay where there are those tests? It is a prohibition on the court from staying, except where that test is satisfied. Therefore, a court would still have a discretion. The noble Lord may also take into account that in considering that discretion the court would be likely to balance considerations. One aspect would be how long the stay would be before the criminal investigation had been concluded, and balance that against the hardship to the victim of having to wait for his remedy. I offer those suggestions as the noble Lord is considering this amendment and they may assist in understanding why the word "might" is there.
Lord Lester of Herne Hill: Perhaps I may complete my point. The problem is that we cannot oust the jurisdiction of the court or deprive a person of effective access to a remedy under the human rights convention except where necessary; that is, not where it might be contrary to public interest or might prejudice a criminal investigation, but where it is necessary and proportionate to protect a legitimate stated aim.
My concern is that that confers a power on the courts to exercise their discretion in a loose way. Although the Human Rights Act may come to the rescue, it ought not to be left to the Human Rights Act; we should get it right in this Bill. We should not write on the face of the Bill something which gives too wide a power to prevent the victims of race discrimination having effective access to justice. I have made my points, supplemented by the points made by other noble Lords. The Minister indicated that he will reflect upon this, as I am sure we all will. On that basis, I beg leave to withdraw the amendment.
Amendment No. 22 seeks to remove the proposed special right of public authorities--nobody else--as respondents in claims in new Section 19B to apply to the court to prevent any inference from a failure to reply to the questions in the statutory questionnaire, or from any particular reply where such reply would prejudice criminal proceedings or reveal the reason why a prosecution was not brought forward.
We entirely accept that there is a need to prevent discrimination cases turning into a civil version of a criminal trial. That is common ground. But there appears to us to be no need for this provision because Section 65(2) of the 1976 Act already says that a court or tribunal can draw inferences only if the respondent,
Baroness Whitaker: Can my noble friend the Minister tell the Committee how the Bill will implement the relevant undertaking of my right honourable friend the Home Secretary contained in his letter of July to the CRE--it was copied to me as the then vice-chairman of the Camden Race Equality Council so I should perhaps declare an interest--when he wrote,
I hope that we shall see a duty on courts and tribunals to draw an inference from a refusal, particularly as my right honourable friend the Home Secretary said that this will be implemented. As far as I can see it belongs in this part of the Bill but, as will be evident, I am not a learned Lord and shall be happy to see it wherever it fits. Perhaps the Minister will give his attention to that for a later stage of the Bill.
Lord Goldsmith: The noble Lord, in moving this amendment, in a sense said that the reason for tabling the amendment is simply because the clause is unnecessary. It is relevant to consider, therefore, that there is no issue in relation to two aspects. First, I agree with the noble Lord that there is no issue on the importance of the questionnaire procedure and of the courts having an ability and, in appropriate circumstances, a duty to draw adverse inferences. As my noble friend Lady Whitaker said, sometimes that
All that comes down quite simply to this. Section 65(2) of the Act to which the noble Lord, Lord Lester, referred says that the court will not draw such an inference where it appears that the respondent had a reasonable excuse for not answering the question. The clause makes it plain on the face of the Bill that it would be a reasonable excuse if a criminal investigation was under way. For my part, I feel that that should be a reasonable excuse if it would significantly prejudice that criminal investigation.
It is right, therefore, that the Bill should make it plain that there is that exception in those circumstances--limited to those circumstances--as a way, as the Minister said earlier, of making sure of a balance between protecting victims of crime, of seeing a criminal investigation properly pursued and the rights of those subject to discrimination being properly maintained.
Lord Cope of Berkeley: We have to be careful. First, I entirely agree that the questionnaire procedure is important. It needs to be preserved and continued in a valid way in the context of this Bill as it worked under the Act. The noble Lord, Lord Lester, explained that it was his invention in the first place and he is to be congratulated on the fact that it was an important element in making the existing Act effective.
We are also all agreed, as has come out already, that we do not want to prejudice either proceedings or investigations of criminal offences. Clearly in some cases the answers to questionnaires could do that. What struck me was the difference between proposed new subsections (4A) and (4B). For example, the Crown Prosecution Service could, presumably, always say, "Well, we won't reveal the reasons behind a decision not to introduce criminal proceedings". Indeed, taken by itself, new subsection (4A) would be a complete let-out for the CPS from the whole effect of the Bill. It is only when it comes to the consideration of such an application by the court that questions of prejudice have to be considered.
I would have expected mention of the word "prejudice" to appear in subsection (4A) in that those who make the otherwise unsatisfactory reply, as it were, to the questionnaire would have to do their best to explain to the court why they thought it would prejudice proceedings. In some cases that would be obvious and those concerned would not need to "bang on" about it, but in others it may be a matter of doubt. We certainly do not want to give the CPS, or anyone else for that matter, a free run under this legislation.
I agree with the Government in their response to the comment made by the noble Lord, Lord Lester, that this provision is specifically directed at public authorities. Of course, it is not public authorities generally; it relates to those concerned with criminal
I should also point out that the reason I do not think that the prosecuting and investigating authority should be left out of the matter is that this was absolutely central to the Lawrence case. The decisions that were made in the course of that investigation regarding whether or not to prosecute were absolutely crucial in the Macpherson report. Indeed, as we all know, a private prosecution was mounted at one point; so there can be no question of leaving such authorities out in these matters.
We should also bear in mind the point I made earlier that, in one sense, no criminal investigation is ever wholly closed. The possibility of it being re-opened and considered again can occur at more or less any point, even many years after the file has lain dormant or been put into the long-term pending filing system of the police. I give way to the noble Lord.
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