Select Committee on Delegated Powers and Deregulation Second Report


ANNEX 3

RACE RELATIONS (AMENDMENT) BILL [HL]

Memorandum by the Home Office

1.  This memorandum is concerned with the Race Relations (Amendment) Bill [HL] which was introduced on 2 December 1999. It identifies each provision of the Bill which confers powers for delegated legislation, and explains in each case the purpose of the power, the reason why the matter is to be left to delegated legislation, and the nature and reason for the procedure selected.

Background

2.  The Bill's main purposes are to extend further the Race Relations Act 1976 ("the Act") in relation to public authorities; to make chief officers of police vicariously liable for acts of racial discrimination committed by police officers and to amend the exemption under the Act for acts done for the purposes of safeguarding national security thus remedying an ECHR-incompatibility in that legislation.

3.  Clause 1 of the Bill extends the scope of the race discrimination legislation in its application to public authorities. It does this by inserting new sections 19B, 19C and 19D into Part III of the Act. Section 19B makes it unlawful for a public authority to directly discrimination against a person on racial grounds in carrying out any of its functions. For the purposes of section 19B, "public authorities" are those bodies or persons either listed in Schedule A1 (as inserted by Schedule 1) or belonging to one of the classes listed in that Schedule. Section 19C makes special provision in relation to immigration or nationality decisions. Section 19D makes special provision in relation to decisions not to institute criminal proceedings.

4.  Clause 2 makes provision in relation to certain public appointments. Clause 3 makes chief officers of police vicariously liable for acts of racial discrimination committed by police officers. Clause 4 makes provision to minimise the risk of a claim under the Act prejudicing associated criminal investigations or criminal proceedings. 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. Clause 6 changes the national security defence under the Act. Clause 7 makes provision for courts to adopt certain special procedures when dealing with cases under the Act that raise national security issues. Clause 8 provides for Schedule 2 and 3, which make consequential amendments and repeals to have effect. Clause 9 provides for the short title, commencement and extent of the Bill.

Provisions for Delegated Legislation in the Bill

CLAUSE 1

5.  Subsection (5) of section 19B as inserted by clause 1 gives the Secretary of State the power to amend Schedule A1 to the Act by order so as to extend the application of section 19B, if he considers that the extension is limited to functions of a public nature.  

6.  The purpose of this power is to enable further bodies or persons, or further classes of bodies or persons, or further particular functions or capacities of bodies or persons, to be added to the list of public authorities for the purposes of section 19B. Amendments to the Schedule may only be made if the Secretary of State considers that the extension relates only to functions of a public nature. For example, it is intended to use this power to add non-departmental public bodies carrying out functions of a public nature to the list of public authorities. It could also be used to add to the list the functions of a public nature of certain private bodies - for example, private sector bodies running prisons under contract to the Home Office.

7.  The matter has been left to delegated legislation because it is likely that the Schedule will need to be added reasonably frequently, to keep it up to date for example as new bodies or offices are created, or take on new functions. It would be unwieldy to have to use primary legislation each time. The order is subject to the negative resolution procedure by virtue of section 74(2) of the Act. The negative resolution procedure has been selected, because it is felt that, given the stipulation that extensions to the list must relate to functions that the Secretary of State believes to be of a public nature, and given that the Bill's purpose is to extend the Act to public authorities, additions to the list are not likely to be controversial.

8.  Subsection (6) of section 19B as inserted by clause 1 gives the Secretary of State the power to amend the entries in Schedule A1 to the Act by order if a person, office or post ceases to exist or changes its nature; or if a person stops exercising functions in a particular capacity, or stops exercising particular functions; or if functions of a person appear to the Secretary of State not to be functions of a public nature.

9.  The purpose of this power is to enable persons, including office holder, or classes of person, or particular capacities or functions of persons, to be removed from the list of public authorities where it is no longer appropriate for them to be on the list.

10.  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 listed persons are abolished, or change their functions. It would be unwieldy to have to use primary legislation each time. The order is subject to the negative resolution procedure by virtue of section 74(2) of the Act. The negative resolution procedure has been selected, because it is felt that, given the stipulation that removals may be made from the list only in the limited circumstances specified, removals from the list are not likely to be controversial.

11.  Subsection (7) of section 19B as inserted by clause 1 gives the Secretary of State the power to include in an order made under subsection (5) or (6) 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.

12.  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 list of public authorities.

CLAUSE 7

13.  Section 67A(1) as inserted by clause 7 provides for rules of court to be made.

14.  The purpose of this power is to enable rules of court to be made enabling a court, where it considers it expedient for national security reasons, to:

  • exclude the claimant, and/or his representative(s), and/or court assessors, from all or part of proceedings;
  • allow an excluded claimant or representative to make a statement to the court; and
  • take steps to keep the reasons for its decision secret.

15.  These powers are based on similar provision in Schedule 8 of the Employment Relations Act 1999, which amends the Employment Tribunals Act 1996, allowing for tribunal rules to be made to deal which cases which raise issues of national security. However, not all the provisions for tribunal rules are needed as appropriate rules of court already exist for some of the circumstances provided for.

16.  The matter has been left to delegated legislation as is standard for court procedures. The procedures that will apply will be those which already apply to county court and sheriffs court rules.

CLAUSE 9

17.  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 transitional or saving provision as the Secretary of State considers appropriate. This commencement power follows the normal precedent in not being subject to any parliamentary procedure.

Schedule 2, paragraph 4

18.  Paragraph 4 of Schedule 2 adds section 19B to section 73(1)(b) of the Act. Section 73(1)(b) allows the Secretary of State by order to amend Parts II, III or IV so as to render lawful any act which would otherwise be unlawful by reason of one of the listed provisions. The effect of paragraph 4 is to extend section 73(2) to enable an order to make lawful an act which would otherwise be unlawful by virtue of section 19B.

19.  An order under section 73(2) must first be approved by each House of Parliament. The nature of this power makes it appropriate for the affirmative resolution procedure to apply. No such order may be made by the Secretary of State unless he has first consulted the Commission for Racial Equality (see section 73(2)).

3 December 1999



 
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