Select Committee on Delegated Powers and Deregulation Thirty-Third Report



ANNEX 1

RACE RELATIONS (AMENDMENT) BILL [H.L.]

Memorandum by the Home Office

INTRODUCTION

1.  This memorandum is concerned with the Race Relations (Amendment) Bill [H.L.] which was introduced into the House of Lords on 2 December 1999. The Bill's main purposes on introduction were to:

(i)  extend further the Race Relations Act 1976 ("the Act") in relation to public authorities;

(ii)  make chief officers of police vicariously liable for acts of racial discrimination committed by police officers;

(iii)  amend the exemption under the Act for acts done for the purposes of safeguarding national security thus remedying an ECHR-incompatibility in that legislation.

2.  The Bill, which confers powers for delegated legislation, has been amended since its introduction. This memorandum should be read alongside the Home Office's memorandum of 3 December 1999 (Annex I) and the Select Committee on Delegated Powers and Deregulation's response of 15 December 1999 (Annex II). It identifies each new or amended delegated power, explains its purpose, why the matter is to be left to delegated legislation, and the nature and reason for the procedure selected.

BACKGROUND

3.  As at introduction, Clause 1 of the Bill extends the scope of the Act in its application to public authorities by inserting the following new sections into Part III of the Act:

-  Section 19B makes it unlawful for a public authority to discriminate against a person on racial grounds in carrying out any of its functions. Since introduction, there have been two significant changes to this section:

  1. "public authorities" is defined broadly for the purpose of this section, based on the definition in section 6 of the Human Rights Act 1998, rather than by reference to a list in Schedule A1 to the Bill;
  2. indirect discrimination is made unlawful for the purpose of this section, not just direct discrimination and victimisation.

-  Section 19BA, a new section since introduction, makes provision for exceptions from section 19B;

-  Section 19C, as at introduction, provides an exception for immigration or nationality decisions;

-  Section 19D, a new section since introduction, makes provision for the Secretary of State to appoint a person to monitor the operation of the immigration and nationality exception at section 19C;

-  Section 19E, as section 19D did at introduction, exempts decisions not to institute criminal proceedings.

4.  The provisions in Clause 2 have been newly inserted since the Bill's introduction to impose a duty to promote race equality on specified public authorities. Clause 2 replaces section 71 of the Act with the following new sections:

-  Section 71, which places a general duty on those bodies or persons specified in Schedule 1A or of a description falling within that Schedule, in carrying out their functions, to have due regard to the need to eliminate unlawful racial discrimination and to promote equality of opportunity and good race relations between persons of different racial groups;

-  Section 71A, which makes special provision in relation to immigration and nationality and other special cases;

-  Section 71B, which makes special provision in relation to Scotland and Wales;

-  Section 71C provides for the CRE to issue statutory codes of practice on the performance of the duties imposed under section 71;

-  Section 71D, which makes provision for ensuring compliance with the duties under section 71;

-  Section 71E, which makes provision for enforcement of the compliance mechanism.

5.  Clause 3 (was clause 2) makes provision in relation to certain public appointments.

6.  Clause 4 (was clause 3) makes Chief Officers of Police vicariously liable for acts of racial discrimination committed by police officers.

7.  Clause 5 (was clause 4) makes provision to minimise the risk of a claim under the Act prejudicing associated criminal investigations or criminal proceedings.

8.  Clause 6 (was clause 5) makes provision to enable certain claims under the Act to be heard by an immigration appellate authority, as part of the one-stop appeal procedure established by the Immigration and Asylum Act 1999, instead of being heard in the county court under section 57 of the Act.

9.  Clause 7 (was clause 6) changes the national security defence under the Act.

10.  Clause 8 (was clause 7) makes provision for the courts to adopt certain special procedures when dealing with cases under the Act that raise national security issues.

11.  Clause 9 (was clause 8) provides for Schedules 2 and 3, which make consequential amendments and repeal, to have effect.

12.  Clause 10 (was clause 9) provides for the short title, commencement and extent of the Bill.

13.  The issue of delegated powers arises in relation to four of these clauses - clauses 1, 2 8 and 10.

PROVISIONS FOR DELEGATED LEGISLATION IN THE BILL

CLAUSE 1

14.  Due to the adoption of a generic definition of a "public authority" for the purposes of section 19B, the provisions for delegated legislation at Clause 1 of the Bill (see paragraphs 5-12 of Annex I) have been deleted, along with Schedule A1.

CLAUSE 2

15.  Clause 2 inserts five new delegated powers.

16.  The relevant parts of the first delegated power in Clause 2 are:

(i)  Section 71(2), which gives the Secretary of State the power to impose by order, on such persons falling within Schedule 1A as he considers appropriate, such duties as he considers appropriate for the purpose of ensuring the better performance by those persons of their duties under subsection 71(1);

(ii)  Section 71(3), which provides that such orders may apply to a particular person in Schedule 1A, to any description of persons in the Schedule, or to every person in the Schedule, and may make different provision for different purposes;

(iii)  Section 71(4), which provides that before making such an order the Secretary of State must consult the Commission for Racial Equality;

(iv)  Section 71B(1), which provides that section 71(2) is a pre-commencement enactment within the meaning of the Scotland Act 1998;

(v)  Section 71B(2), which provides that before making such an order in relation to functions exercisable in Wales by a person that is not a Welsh public authority, the Secretary of State shall consult the National Assembly for Wales.

(vi)  Section 71B(3), which provides that the Secretary of State shall not make such an order in relation to functions of a Welsh public authority except with the consent of the National Assembly for Wales.

17.  The purpose of this power is to enable further, specific duties to be imposed on public authorities subject to the general duty to promote equality, in a proportionate and flexible manner. Orders could, for example, require particular bodies to produce and publish equality plans, to monitor the delivery of services, or to monitor the ethnic origin of staff. The Government wishes to consult widely on the content of the orders, and believes that different specific duties will be appropriate for different kinds of body. For example, it may be appropriate to impose particular duties on a major department of state or local authority that it would be inappropriate to impose on a small public authority.

18.  The matter has been left to delegated legislation because the Government envisages that there will be a range of duties applying to different bodies. It would be unwieldy to set all of these out in primary legislation. There will need to be wide public consultation on the nature of the duties.

19.  Orders are subject to the negative resolution procedure by virtue of section 74(2) of the Act. That procedure has been selected because it is felt that, given that an order can only impose duties on the specified bodies, the Government's intention to consult on those duties, and in particular the statutory requirement for consultation with the Commission and the devolved administrations, although a order should be subject to some parliamentary scrutiny the negative resolution procedure is sufficient.

20.  The second delegated power, set out at section 71(5), allows the Secretary of State to amend by order Schedule 1A, which lists the bodies or persons to which the general duty to promote race equality will apply. The purpose of this power is to enable additions or subtractions to be made to the Schedule for the purposes of the duty to promote race equality. For example, it is intended to use this power to add Non-Departmental Public Bodies to the Schedule.

21.  An order may extend the application of the Schedule only if the Secretary of State considers that the extension relates to a person which exercises functions of a public nature. It could, therefore, be used to add the functions of a public nature of certain private bodies - for example, private sector bodies running prisons under contract to the Home Office. It is envisaged that the power would also be used to remove bodies that have ceased to exist, or that have changed their functions in a way that makes it inappropriate for them to continue to be subject to the general duty.

22.  The matter has been left to delegated legislation because it is likely that the Schedule will need to be amended reasonably frequently, to keep it up to date as new bodies are created, or take on new functions, or as bodies are abolished or change their functions. It would be unwieldy to have to use primary legislation each time.

23.  Orders are subject to the negative resolution procedure by virtue of section 74(2) of the Act. The negative resolution procedure has been selected because an order may only add persons to the Schedule if the Secretary of State considers that they carry out functions of a public nature. Amendments to the Schedule are not likely to be controversial. Although an order should be subject to some parliamentary scrutiny it is thought that the negative resolution procedure is sufficient.

24.  The third delegated power is set out at section 71(6). This gives the Secretary of State the power to include in an order made under subsection (2) or (5) such incidental, supplementary or consequential provision as he considers appropriate. This includes the power to amend or repeal provisions made by or under an enactment including an Act of the Scottish Parliament.

25.  The purpose of this power is to enable any consequential amendments to legislation to be made that are necessary as a result of amending the Schedule.

26.  The matter has been left to delegated legislation because by their nature the provisions in question are not identifiable at this stage. An order is subject to the negative resolution procedure by virtue of section 74(2) of the Act. This procedure was selected because the provisions are not likely to be controversial. Although the order should be subject to some parliamentary scrutiny it is thought that the negative resolution procedure is sufficient.

27.  The fourth delegated power is at Section 71C(8) and is in relation to Codes of Practice which the CRE can prepare under section 71C(1) to provide practical guidance to public authorities regarding duties imposed on them by sections 71(1) and (2). It provides that a code of practice, if approved by Parliament, shall come into effect on such day as the Secretary of State, following consultation with the Scottish Ministers and the National Assembly for Wales, may by order appoint.

28.  The power and procedures for preparation and publication of such codes are based on the existing provisions in the Act in relation to codes of practice in the fields of employment and housing (section 47).

29.  The commencement of a code has been left to delegated legislation because this will provide flexibility, in order to give them effect in the light of the duties that are imposed by order under section 71(2). The power is subject to the negative resolution procedure, by virtue of sections 71C(6) and (7). The negative resolution procedure is consistent with current practice under section 47 of the 1976 Act.

30.  The fifth delegated power is at Section 71C(9). It gives the Secretary of State the power to include in an order made under section 71C(8) such transitional provisions or savings as appear to him to be necessary or expedient in connection with a code of practice being brought into operation.

31.  The purpose of this power is to enable an order to make provision where, for example, guidance in an earlier code is superseded by a new code. Since a code can be taken into account in legal proceedings to which it is relevant it may sometimes be expedient to make consequential or transitional provisions relating to a new code.

32.  The matter has been left to delegated legislation because by their nature the provisions in question are not identifiable at this stage. An order is subject to the negative resolution procedure by virtue of section 74(2) of the Act. This procedure was selected because the provisions are not likely to be controversial. Although an order should be subject to some parliamentary scrutiny it is thought that the negative resolution procedure is sufficient.

CLAUSE 8

33.  Clause 8 (was clause 7) is unamended since introduction.

CLAUSE 10

34.  Clause 10 (was clause 9) gives the Secretary of State the power to make orders bringing the Bill into force in whole or in part, to appoint different days for different purposes, and to make such transitory, transitional or saving provision as the Secretary of State considers appropriate. This power is the same as when the Bill was introduced except for one aspect, its extension to include transitory provisions. Such provision may in particular include provision made in consequence of any provision of any other Act passed before, or in the same session as, this Act, not having come into force. It may need to be exercised if the Armed Forces (Discipline) Bill, which makes changes to the disciplinary procedures for the armed forces, to which this Bill refers, does not come into force before this Bill does. This commencement power follows the normal precedent in not being subject to any parliamentary procedure. Other aspects of the power were described in the Home Office's previous memorandum (paragraph 17 of Annex I).

SCHEDULE 2

35.  Paragraph 8 (was paragraph 4) of Schedule 2 is unamended since introduction.

SCHEDULE 3

36.  Schedule 3 inserts section 66(8) and (9) into the Act. This adds to the definition of "rules and regulations" for the purposes of section 66, rules made under sections 5 or 8 of the Special Immigration Appeals Commission Act 1997 (in relation to appeals made under that Act) and rules made under paragraphs 3 and 4 of Schedule 4 to the Immigration and Asylum Act 1999 (in relation to appeals made under Part IV of that Act). This will enable the Secretary of State to make rules under those provisions that relate to the assessment of expenses incurred by the CRE in assisting under section 66 of the Act, in accordance with section 66(5).

37.  The purpose of this power is to facilitate the consideration of allegations of racial discrimination by the Immigration Appellate Authority or the Special Immigration Appeals Commission.

38.  The matter has been left to delegated legislation because this is consistent with the approach taken in the existing legislation in relation to assessment of expenses by other courts and tribunals. The making of rules relating to assessment of expenses in appeals under Part IV of the Immigration and Asylum Act 1999 is subject to the negative resolution procedure by virtue of section 165 of that Act. The making of rules relating to assessment of expenses in appeals under the Special Immigration Appeals Commission Act 1997 is subject to the negative resolution procedure by virtue of sections 5(9) and 8(4) of that Act. The negative resolution procedure has been retained because this is consistent with the approach taken in existing legislation.

39.  Schedule 3 now amends section 5 of the Special Immigration Appeals Commission Act 1997 to enable the Secretary of State to make rules relating to the conduct of appeals under section 2A of that Act. Section 2A of that Act gives a right of appeal on the ground that a decision-maker has breached a person's human rights in taking a decision. Schedule 3 to the Bill extends section 2A of that Act to give a right of appeal on the ground that a decision-maker has racially discriminated against a person in taking a decision.

40.  The purpose of this power is to enable the Secretary of State to make rules relating to the conduct of race relations and human rights appeals brought under the Special Immigration Appeals Commission Act 1997. This will bring these rights of appeal in line with other appeals that may be brought under that Act.

41.  The matter has been left to delegated legislation because this is consistent with the approach taken in existing legislation. The making of rules relating to appeals is subject to the negative resolution procedure by virtue of section 5(9) of the Special Immigration Appeals Commission Act 1997. The negative resolution procedure has been retained because this is consistent with the approach taken in the existing legislation.

Home Office
2 November 2000


 
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