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Baroness Masham of Ilton: My Lords, if the Government have to intervene, what would be the result? What would happen?

Lord Hunt of Kings Heath: My Lords, at the extreme end, if a local authority is deemed to be seriously failing and there is no indication that it will be able to put that right by itself, from next April the Government will have the ability to transfer the social service function to another local authority. But my substantive point is that, short of that, there are a number of steps we can take to monitor, to agree action plans, and to ensure that local authorities improve their performance in accordance with that agreed action plan.

Lord Rotherwick: My Lords, the Minister talks about powers being transferred from one authority to another. Does that mean that the budget of the authority which is losing the powers will follow the transfer, or will the Government re-budget sufficiently for that social service to be successful?

Lord Hunt of Kings Heath: My Lords, in extremis, which is when the situation may arise, the key point will be to ensure that the services are provided with a smooth transfer. The Government must ensure that the resource position sufficiently covers that transfer. It would be wrong if, having transferred a service, the local authority which lost that service retained the resources.

Child Curfew Orders

2.55 p.m.

Lord Dholakia asked Her Majesty's Government:

The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, none yet. It is for local authorities to decide whether or not to apply for confirmation of a local child curfew scheme in the light of their work on wider crime and disorder reduction strategies. Local child curfews are an additional measure to use in the fight against youth

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crime. They are part of a wide range of new interventions such as reparation orders, parenting orders and action plan orders which will help to prevent crime and make young offenders and their parents face up to their actions and responsibilities.

Lord Dholakia: My Lords, I am grateful to the Minister for that reply. However, does he accept that the reason the police and local authorities do not apply for curfew orders is because curfews do little to prevent crime? The present curfew orders apply to children under 10. Does the Minister accept that those who commit crime on our streets are likely to be much older than that and are therefore unaffected by the provision of curfew orders? Will the Minister also accept that the police have ample powers, if children are found running in the streets at night unsupervised, to use other measures to take them home without resorting to the cumbersome curfew orders?

Lord Bassam of Brighton: My Lords, the noble Lord makes a number of useful and valuable points. It is for that reason that my right honourable friend the Home Secretary wrote on 15th October to all local authorities and chief constables in England and Wales to solicit their views in relation to the potential effectiveness of child curfew orders. We are beginning to receive responses, and from their content I suspect that the issues raised by the noble Lord will be those that we have to take into further consideration. It is undoubtedly the case that a number of other effective powers we put in place can be made use of by local authorities and the police in dealing with youth disorder, youth offending and youth crime.

Lord Skelmersdale: My Lords, the Minister began his answer with the words, "none yet". How long before the Government remove this ridiculous provision from the statute book?

Lord Bassam of Brighton: My Lords, it is all very well for the noble Lord to call it ridiculous; but this provision was asked for by local authorities and the police service. Clearly we keep these matters under review. We try to evaluate the effectiveness of the measures we put in place. We shall continue to keep this under review and, as I said, my right honourable friend the Home Secretary has already written to local authorities and police services to find out their views on the matter.

Lord Ewing of Kirkford: My Lords, is my noble friend aware that the only experiment of this kind has been carried out in Scotland, in Hamilton in the Strathclyde police area? When my noble friend writes to chief constables in England and Wales, will he advise them to consult the Chief Constable of Strathclyde, Mr John Orr, on the outcome of the experiment? I can assure my noble friend that it has been an outstanding success.

Lord Bassam of Brighton: My Lords, I am grateful to my noble friend for those comments. From my recent

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contact with Strathclyde police I was most impressed by the way in which they conduct operations. Of course we will take on board the views that come back to us from our friends in the north and make sure we reflect on them in the way in which we develop practice in England and Wales.

Lord Cope of Berkeley: My Lords, the scheme may be a success in Hamilton, but it is certainly a flop in England and Wales. Indeed, it is well over a year since these orders became available and they have not been used at all by any local authority. However, in that letter of 15th October, did not the Home Secretary also suggest that he was proposing to change the law so as to permit these curfew orders to be made for children over the age of 10? I believe it has been suggested that that should be extended to cover children up to the age of 16. Will that not cause further trouble for anti-social behaviour orders, which apply to the slightly older age group and which have also been very little used so far, despite being part of what is supposed to be a flagship policy of the Government to tackle youth crime?

Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord for his very helpful questions. We shall have to see whether child curfew orders become part and parcel of the apparatus. Clearly they are available and can be used. I note the noble Lord's comments about anti-social behaviour orders. In response, I quote from an article in today's edition of the Daily Mail which refers to a case where someone was arrested 100 times, convicted 55 times and was a "walking crime wave" at the age of just 14. The local authority in question--Nottingham City Council--clearly thought that it was such a serious problem that it decided to make use of the anti-social behaviour order process. Indeed, a number of authorities have now followed that course.

Many of the orders to which I referred earlier are working and are effective in pilot areas only. In managing their crime reduction strategies, it is clearly open to local authorities and the police to make use of a wide range of powers in the fight against crime.

City of Newcastle upon Tyne Bill [H.L.]

3.1 p.m.

Read a third time, and passed, and sent to the Commons.

Life Peerages (Appointments Commission)

Lord Kingsland: My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That an humble Address be presented to Her Majesty praying that Her Majesty may be graciously pleased to allow that Her undoubted Prerogative and interest may not stand in the way of the consideration by Parliament during the present

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Session of any measure to establish a Commission to make proposals for the conferment of life peerages under the Life Peerages Act 1958.--(Lord Kingsland.)

On Question, Motion agreed to.

Race Relations (Amendment) Bill [H.L.]

3.2 p.m.

Lord Carter: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Race Relations (Amendment) Bill, has consented to place her prerogative and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Lord Bassam of Brighton: My Lords, I beg to move that this Bill be now read a second time. The Bill significantly updates the Race Relations Act 1976 for the first time in almost 25 years. As set out in the Government's equality Statement made in another place on 30th November and repeated by the Lord Privy Seal in response to a written parliamentary Question from my noble friend Lord Haskel on 2nd December, it is a significant part, but only one aspect, of our wider equality agenda. We want to transform Britain into a society that is inclusive and prosperous, eliminating unjustified discrimination wherever it exists. Making equality of opportunity a reality for all is very much at the heart of our agenda. It is not only inherently right but also essential for Britain's economic and social success.

Our aim is to provide the right legislative and administrative framework to achieve just this. We have made it clear that we will bring forward further legislation to meet the legislative commitments that we have made in response to the CRE and other bodies as soon as parliamentary time permits. Not least, we shall place a statutory duty on public authorities to promote equality. Our aim is to ensure that public authorities set the pace in the drive for equality through leading by example. Therefore, this Bill should be seen and welcomed in that context.

The Bill has three main purposes: to extend the Race Relations Act in relation to public authorities; to make chief officers of police vicariously liable for acts of racial discrimination by police officers; and to amend an exemption under the Act for acts done for the purposes of safeguarding national security, thus remedying a provision that we think is incompatible with the European Convention on Human Rights.

The first two proposals implement a government commitment made in response to one of the key recommendations of the report of the inquiry into the death of Stephen Lawrence. The report recommended, among other things, that the Race Relations Act should be extended to the police and that chief officers of police should be made vicariously liable for acts of racial discrimination by police officers.

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When the report was published, the Government said that they would go further and are now doing so. We are extending provisions of the Act not only to the police but also to the functions of other public authorities--those listed in Schedule 1 to the Bill--that are not currently covered. The Bill therefore tackles gaps in coverage which were left when the 1976 Act was introduced, or which have been found through the case law.

The Commission for Racial Equality, in its third review of the Race Relations Act, also recommended that the Act should be extended in respect of public services, as, indeed, did the Better Regulation Task Force. So I am pleased to say that the Bill also meets a commitment made by the Government in response to both the CRE and the Better Regulation Task Force.

I anticipate that noble Lords will wish to focus their initial deliberations on the first of the three aspects of the Bill. Therefore, it is to this that I turn first. However, before describing what the Bill will do, I should like to describe what the existing legislation--the Race Relations Act 1976--does now. It is difficult to understand the one without the other.

As your Lordships will know, we have in this country a Race Relations Act that is now almost 25 years old. The noble Lord, Lord Lester of Herne Hill, will be particularly familiar with that piece of legislation. Indeed, he was very instrumental in getting it on to the statute book. I pay great tribute to him because the Act has, by and large, stood the test of time and has made a highly significant contribution to improving the quality of race relations in our country. That fact should not be overlooked.

The Act makes it unlawful to discriminate on racial grounds in relation to employment, training and education, the provision of goods, facilities and services, and certain other specified activities. It provides for individuals who have been discriminated against to bring proceedings and claim damages in employment tribunals or designated county courts. It also established the Commission for Racial Equality, giving it independent strategic investigating and enforcement powers.

The Act does not generally apply to functions other than those I have mentioned--namely, employment, training and education and the provision of goods, facilities and services--so there are gaps in the Act's coverage in relation to public authorities. Further, the precise distinction between functions that are covered and those which are not is unclear and is only clarified in particular cases, and in a piecemeal fashion, by decisions of the courts. I shall give your Lordships an example. In relation to goods, facilities and services, it has been found by the courts to apply in respect of public authorities only where the act done is at least similar to an act that could be done by a private person. We also know that the Act does not apply to the functions of immigration control and law enforcement. The case law that I particularly have in mind is R v. Entry Clearance Officer, Bombay ex parte Amin [1983] and Farah v Commissioner of Police for the Metropolis [1997]. This Bill addresses those gaps.

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Clause 1 of the Bill extends the Race Relations Act by inserting new Sections 19B, 19C and 19D into Part III of the Act. I shall say something about each in turn. New Section 19B will make it unlawful for a public authority to discriminate directly against a person, or to victimise a person, on racial grounds in carrying out any of its functions. This provision applies to all functions that are not already covered by the existing provisions of the Act; in other words, where functions are already covered by another provision of the Act, that coverage will not change.

The new section will have very wide application. For the purposes of the section, "public authorities" will be those bodies, or classes of body, listed in a new schedule to the Act. The schedule lists the main central and local government bodies, including the police. Ministers of the Crown, government officials, law enforcers and other office holders will all be covered.

Your Lordships may notice that there are some exemptions and omissions to the list of public authorities. I should like to assuage any concerns that your Lordships may have on this point. In most cases omissions have been made for one of two reasons.

First, there are some bodies whose functions are clearly already covered by the current Race Relations Act. Educational bodies are an obvious example. Secondly, the schedule does not include those public bodies usually known as non-departmental public bodies or quangos. It is intended that where it is established in consultation with such bodies that they have functions that are not already covered by the Act, they too will be added to the list of public authorities by order.

Generally, victims of discrimination under the new Section 19B will be able to bring proceedings in a designated county court, or, in Scotland, a sheriff court, in the same way as for existing non-employment cases under the Act. The only exception will be for claims which are relevant to the immigration and asylum cases to be heard under the one-stop procedure established under the Immigration and Asylum Act 1999, about which I shall say more later.

I anticipate that your Lordships will be interested to know why the Government are proposing that the new section should cover direct discrimination and victimisation but not indirect discrimination. The Government did not take this decision lightly. We reached it for many of the reasons that we concluded that it would have been inappropriate to include indirect discrimination in the Northern Ireland Act 1998 when that legislation was before us in the second parliamentary Session.

I feel privileged in explaining what I am about to say in the presence of so many of your Lordships who know and understand this legislation all too well from experience and perhaps better than I. However, I shall persist for the sake of completeness. I am sure your Lordships will agree that direct discrimination is where a person treats a person less favourably than he treats or would treat other people. Indirect discrimination is treatment that may be described as equal in a formal sense but that is discriminatory in its

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effect on a particular group. It occurs when a requirement or condition is applied equally to all, but the proportion of one group that can comply is considerably smaller than the proportion of another group that can comply.

To outlaw indirect discrimination in all the functions to be newly covered by the Act would have uncertain and potentially far-reaching effects on the Government's ability to make policy. Any policy or practice that had a differential impact on different racial groups because of a requirement or condition could be challenged in the courts. That could potentially include any age-based policy because of the different demographic profiles of different racial groups, and also any regional policy because of the different regional spread of different racial groups. Not least, challenges could be mounted to those policies that are helping individuals from ethnic minority communities the most.

The Government are working to ensure that discriminatory policy-making and practice must stop. But we believe that the most effective way of ensuring this is to retain the flexibility necessary to pursue policies which can benefit ethnic minorities and others without the risk of frequent and counter-productive challenges in the courts while obliging public authorities to tackle unjustifiable discriminatory practices through the promotion of race equality. That means, for example, consulting those affected by policy proposals and monitoring the differential impact of policy on different groups so that unexpected, unjustifiable outcomes can be remedied. As announced in the Government's equality Statement, we are pursuing this administratively and are committed to placing a statutory duty on public authorities to promote equality as soon as parliamentary time permits.

I come to the special provisions relating to immigration, asylum and nationality, at new Section 19C. The extension of the Race Relations Act will cover immigration staff. This includes all Home Office and Foreign and Commonwealth Office staff who operate the UK's immigration control, both in this country and overseas.

The Bill provides a number of consequential measures to secure proper alignment between the various statutory provisions covering race relations and those that govern immigration, asylum and nationality. These are necessary to allow our immigration laws to continue to be administered as Parliament intended, and to support the Government's policy of reforming and accelerating the immigration and asylum appeals system. Your Lordships will of course be familiar with the measures in the Immigration and Asylum Act 1999 to produce a new one-stop procedure for appeals. These measures, when in place, will support the delivery of our target that, by April 2001, the majority of asylum applications will be resolved within an average of two months and appeals against a refusal within a further four months.

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The operation of an immigration policy necessarily and legitimately entails discrimination between individuals on the basis of their nationality. Differential treatment is unavoidable because, for example, arrangements for the operation of our immigration control at ports must distinguish between our own citizens, who are free from immigration control, and other nationalities who are subject to such control. Furthermore, there are different rules for those who enjoy free movement rights under our international obligations and those who do not. The immigration rules make distinct provisions for those nationals who require visas to come to the UK and those who do not. Some rules and policies apply only to Commonwealth countries or specified nationalities. There are other examples.

The operation of a rational asylum determination process also requires the ability to differentiate between people of different nationalities and ethnic and national origins who are at risk of persecution overseas and those who are not. A recent example of such differential treatment was the special exercise to evacuate and provide protection to Kosovo Albanians during the crisis in the Balkans.

The existing safeguards in the Race Relations Act for covering acts of discrimination done in pursuance to other statutory provisions are insufficient to allow the immigration system to continue to operate as it should. If consequential provisions were not made, Ministers would, for example, be unable to authorise special compassionate exercises where necessary for particular ethnic or national groups and immigration staff would be unable to exercise the operational discretion necessary to carry out their duties in accordance with ministerial instructions. That is why the Bill provides in new Section 19C that acts of discrimination by immigration staff will not be unlawful if such acts are required or authorised by specified immigration and nationality laws, or expressly authorised by Ministers who of course are themselves accountable to Parliament.

Overall, therefore, it will be unlawful for immigration staff to discriminate on the grounds of race or colour, or, in the case of nationality and ethnic and national origins, where they go beyond what is specified in immigration and nationality laws or what is expressly authorised by Ministers. The personal decisions of Ministers in individual immigration and asylum cases will also be exempt, as such decisions may make legitimate distinctions on the grounds of nationality not covered by existing approved arrangements.

The Bill seeks to strike a sensible balance between prohibiting discriminatory behaviour we would all regard as abhorrent on the one hand, and allowing justified and necessary acts of discrimination to maintain the Government's immigration and nationality policies on the other.

New Section 19D seeks to preserve the role of the criminal courts as the sole forum for determining guilt by exempting decisions not to prosecute from the new

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provisions of the Bill. The importance of this principle was recognised both by the White Paper on freedom of information and also by the Phillips Royal Commission in 1981 which stated,

    "publicly calling into question a decision not to prosecute could amount to a trial of the suspect without the safeguards which criminal proceedings are designed to provide".

I now move to Clause 2. The existing Act covers appointments made by Ministers and departments. Certain public appointments, such as Crown appointments, which are made on the recommendation or approval of Ministers will be newly covered by the Act by virtue of new Section 19B. This clause provides that the remedy for unlawful discrimination is by way of an application to the High Court, or in Scotland the Court of Session, for a declaration, or in Scotland a declarator, and damages. This brings these appointments more in line with existing arrangements in the Act in respect of public appointments.

I wish to say a few words about the special provisions being made in relation to the prosecution function. These are covered in Clause 4 of the Bill. The functions of criminal prosecutors and investigators as listed in the schedule will be covered by the extension of the Act. This means that individuals will be able to bring proceedings against prosecutors and investigators who have directly discriminated against them or victimised them. The Government also have important commitments in relation to the criminal justice system as a whole, including the objectives of dealing with cases with appropriate speed; meeting the needs of victims and witnesses; and promoting confidence in the criminal justice system. For this reason a number of safeguards have been built into the Bill to protect the proper investigation and prosecution of cases.

The Government place weight on avoiding unnecessary delay to the criminal process where there are parallel criminal and civil proceedings. So they are seeking to strike a balance between ensuring that proper civil remedies are available and ensuring that those responsible for crimes are properly and effectively prosecuted without delay or prejudice to the prosecution case.

Victims and witnesses are central to the effectiveness of the criminal process. They must have confidence in the criminal justice system and its ability to deliver its stated aims. The system must also be sensitive to their needs. So a balance needs to be struck between the interests of the individual in pursuing a legitimate claim under the Race Relations Act and the interests of justice, including the public interest and the proper interests of victims and witnesses.

Striking the right balance also means that civil proceedings may have to wait until the criminal proceedings have been finalised. Stays to civil proceedings will defer but not prevent the resolution of a claim for discrimination, and the court will consider what effect the civil proceedings are likely to have on the criminal proceedings, the decision to commence those proceedings, or an investigation into criminal

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offences. The courts will play an important role in maintaining that balance and ensuring that competing interests are taken properly into account.

A further consequential measure is at Clause 5 of the Bill. This provides that claims of unlawful race discrimination from individuals who are subject to immigration control, which relate specifically to a decision in an individual immigration or asylum case concerned with their entitlement to enter or remain in the United Kingdom, will be heard by the independent appellate authority as part of the one-stop procedure on appeals. This is consistent with the Government's policy that in immigration and asylum appeals all outstanding matters should be considered by the appellate authority at one time in the interests of producing a system that is fair, fast and firm.

This will in no way deny individuals the right to a fair hearing. It will allow claims of unlawful race discrimination to be considered alongside human rights issues which themselves may concern issues of discrimination, and other matters relating to the fairness of the decision. A claimant who substantiates his or her claim of discrimination will then be able to apply to a county court or a sheriff court for damages.

Those claimants not subject to immigration control or who allege direct discrimination in other respects and who therefore have no appeal under the immigration Acts--such as British citizens--will be able to take their case direct to the county or sheriff court.

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