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Lord Filkin: My Lords, I am sorry to interrupt. I shall certainly write with the evidence to explain why we believe that decriminalisation will lead to an increase in use. We believe that the policies are working, although we are being modest about the rate and movement of them. We are not making heroic claims for them. This is a difficult subject.

Lord Rea: My Lords, will my noble friend send that information to all noble Lords who have spoken?

Lord Filkin: Certainly, my Lords.

Lord Cobbold: My Lords, I thank the Minister for that remark. I look forward to seeing what he will send me.

Once again, I thank all noble Lords who participated. I beg leave to withdraw the Motion.

Motion for Papers, by leave, withdrawn.

Race Relations Act 1976 (Amendment) Regulations 2003

10.8 p.m.

Lord Filkin rose to move, That the draft regulations laid before the House on 8th May be approved [20th Report from the Joint Committee].

The noble Lord said: My Lords, on behalf of my noble friend Lord Davies of Oldham, I beg to move that the draft regulations laid before the House on 8th May be approved.

The draft regulations are made under Section 2(2) of the European Communities Act 1972. They implement the UK's obligations to prohibit discrimination on grounds of racial or ethnic origins under Council Directive 2000/43/EC—"the race directive". Their approval is important in enhancing our existing legislation and in ensuring that everyone is able to contribute to the best of their ability to the society in which we all live.

I shall start by briefly setting out the context. The race directive flows from Article 13 of the Treaty of Amsterdam and is being implemented in tandem with the EC Article 13 Employment Directive, which introduces new anti-discrimination legislation in employment in the fields of sexual orientation, religion and age, as well as amending the employment provisions of the Disability Discrimination Act. The UK was a key player in negotiating this legislation,

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which introduces a common minimum standard of legal protection from discrimination across Europe, and we welcome the result.

The implementation of the two directives has been the subject of extensive discussions with stakeholders over the past three years. Since the adoption of the directives there have been two formal consultation exercises in the UK: first, Towards Equality and Diversity, and, secondly, Equality and Diversity: The Way Ahead. These regulations and those implementing the employment directive have been informed by the comments and detailed suggestions received in submission to those exercises.

There are certain principles that the directive requires the UK to import into domestic legislation, in this case into the Race Relations Act 1976. The principles we are incorporating include widening the definition of indirect discrimination, shifting the burden of proof from complainant to respondent and introducing the concept of genuine occupational requirements.

I should explain here that the amendments we are making extend across virtually all the areas covered by the Race Relations Act. That is: employment, training, education, the provision of goods and services and the provision of housing. The race directive is wider in scope than the employment directive, which covers only employment and vocational training.

The regulations will widen the definition of indirect discrimination so that there will be more circumstances in which claims can be brought. Informal practices will be brought within the scope of the legislation. A new definition of "harassment" as a form of direct discrimination will be introduced. At present, the courts consider harassment to be a form of discrimination, but we have taken the opportunity to formalise the position.

The regulations also shift the burden of proof from complainant to respondent, so the emphasis will be on the employer to prove that he did not discriminate. Up until now the emphasis has been on the person alleging that his employer had discriminated against him proving his case. Now, once an employee has established a prima facie case that would lead a court or tribunal to presume that there has been discrimination, the respondent—normally the employer—will need to establish that the action taken was not discriminatory. If the respondent fails to do this, the court or tribunal will rule against him. That will only come into effect once the individual has made a convincing case. A respondent would not have to disprove an accusation of discrimination by a complainant who has no plausible evidence to back up his or her claim.

The regulations will introduce the concept of genuine occupational requirements. A genuine occupational requirement is when a job can genuinely not be done appropriately unless it is done by a particular kind of person. The genuine occupational requirement provision applies a more generic approach, leaving it for a tribunal to determine

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whether there is a requirement. Unless there is a genuine occupational requirement, discrimination in employment will be considered unlawful.

These amendments will, in broad terms, also apply in respect of the equality strands covered by the employment directive.

The race directive requires that we remove exceptions in the Race Relations Act which are contrary to the principle of equal treatment. That involves specific changes to the Race Relations Act and increases an individual's protection from race discrimination. At present, partnerships of five or fewer partners, landlords who dispose of and manage small dwellings, charities in their role as employers, UK employers and training providers who recruit from abroad, and private household employers are exempt from the Race Relations Act provisions.

These enhancements, and the others we are making, widen the areas in which claims can be brought, making it easier for individuals to bring claims and to demonstrate that race discrimination has occurred. The regulations will apply on the grounds covered by the directive—discrimination on the grounds of race, ethnic or national origins.

As the directive, to a large extent, mirrors the Race Relations Act, the changes we are making to the Act could be described as minor and technical. For all that, they will be important. Their net effect will be that our existing legislation will be enhanced and that individuals will have improved access to justice.

General compliance costs to businesses linked to the implementation of the race directive should be minimal, as many businesses will already have in place policies and systems that are in line with the directive's requirements.

The Government are pleased to take forward these regulations, which will further strengthen the Race Relations Act and follow hard on the heels of the Race Relations (Amendment) Act, which is making a real difference to racial equality.

The UK leads the way in respect of protection from racial discrimination and implementing the directive further enhances that protection. I am pleased to move these amendments, which are an important step in achieving our aim. I commend the regulations to the House.

Moved, That the draft regulations laid before the House on 8th May be approved [20th Report from the Joint Committee].—(Lord Filkin.)

Baroness Anelay of St Johns: My Lords, I begin by thanking the Minister for his explanations. It is right that I should put on record an observation. We begin to debate a significant piece of secondary legislation after the hour of ten o'clock, the time at which, under the new rules agreed by the House, business is expected to conclude. Managers will obviously have to consider that in the future; certainly, Members of the House will do so when considering the review of proceedings. The principle alleged to be behind the regulations is of

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course one that we would all accept—how could we not? As the Explanatory Memorandum states at paragraph 4:


    "The Directive lays down a principle of equal treatment between persons, irrespective of racial, ethnic or national origins".

The problem arises as soon as one considers the manner in which the Government seek to give effect to that principle by adopting a process of harmonisation.

Effectively, the regulations reverse the burden of proof in race relations employment tribunal cases—and do so by secondary legislation. That is unacceptable. Instead of an employee having to prove that he or she was treated in a racist manner, employers will in future have to prove that they did not act in such a way.

Paragraph 41, referring to the burden of proof, states:


    "the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act".

Indeed, the burden of proof will be reversed not only for new cases brought after the regulations take effect but for cases that have already started.

The regulatory impact assessment states that the UK already has extensive legislation prohibiting discrimination on the grounds of racial or ethnic origin. The Minister also referred to that. The impact assessment then states that, therefore, compliance here is more about fine-tuning existing legislation than introducing new provisions. That is the first time that I have heard something as significant as reversing the burden of proof referred to as fine-tuning. I hope that it is the last. We object to the reversal of the burden of proof and therefore do not support the making of the regulations.

However, I have some questions on the content of the regulations, which are strictly, as one would expect from me, the observations of a layman. I am delighted to see the noble Lord, Lord Lester of Herne Hill, on the Liberal Democrat Front Bench. He will bring a more educated, lawyer's approach to the matter. It is tempting to ask a legion of questions, because so many parts of the regulations are likely to lead to confusion and a lack of transparency, but at this late hour, I shall restrict myself to six issues.

First, paragraph 3 inserts a new Section 1A into the 1976 Act that contains the new definition of indirect discrimination. Can the Minister explain how the word "particular" in paragraph (a) should be defined? The regulations state:


    "Discrimination occurs if one applies a practice that puts or would put a person at a particular disadvantage when compared with other persons".

How is that particular disadvantage—as opposed to a disadvantage—to be measured?

Secondly, paragraph (b) adds that the employer has to show that the practice that he has adopted is a proportionate means of achieving a legitimate aim. How will the proportionality be measured? Against what or whose standard?

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My third question refers to the new concept introduced in paragraph 7, to which the Minister referred: the exception for general occupational requirement. Can the Minister give the House an example of the types of employment that the Government have in mind? I notice that it is not acceptable for there simply to be an occupational requirement that the employee should be of a particular race or of particular ethnic or national origin. Other restrictions also apply to the employer. He or she must be able to show that it is proportionate to apply the exemption in the particular case and that it is not reasonable for the employer to be satisfied that the applicant satisfies the occupational requirement.

All that is convoluted and seems fraught with uncertainty and difficulty. How can an employer demonstrate what is proportionate and that it is not reasonable for him or her to be satisfied in the circumstances? The obscurity gets worse when one reads the regulatory impact assessment. That makes the point at paragraph 11.1 that charities will be hit by the provision for the first time. The Government acknowledge that, in effect, that will prevent charities that target support to particular disadvantaged racial groups from being able to recruit staff from the same group to act as support workers. I find that appalling.

The assessment then makes an astonishing statement. It states:


    "One way to allow charities to continue to select staff on this basis would be to allow them to rely on genuine occupational requirements when recruiting staff for particular posts".

"One way"; then why do the regulations not make that crystal clear? Why should charities have to depend upon fiddling the interpretation of the new regulations to clear themselves in cases brought against them? Would it not be better to have clear legislation that means that cases would not be brought against them in the first place?

My fourth question refers to the requirement for member states to ensure that procedures are available for individuals to enforce the directive's obligations. As the Explanatory Memorandum tells us, the 1976 Act already contains comprehensive provisions allowing for the enforcement of the rights of individuals. However, it goes on to point out, and I use the Minister's word, that these procedures are being "enhanced" by the regulation that requires respondents to respond to a questionnaire served by a complainant within eight weeks. Failure to respond within that time or the provision of an equivocal response may lead a court or tribunal to infer that discrimination has occurred.

I note that that is transposed into the regulations at paragraph 47, headed, "Period within which respondent must reply". Why have the Government decided to enhance the procedures and why did they light upon eight weeks as the magic moment? Is that eight-week deadline applied across the rest of our colleagues in Europe? What is their method of enforcing that part of the directive?

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Fifthly, I note that the implementation of the regulations will be brought to the notice of the public by guidance. When? I understand that the regulations go live on 19th July.

Finally, I note that the regulatory impact assessment takes a complacent attitude—I can think of no other way to describe it—to the costs of the likely changes by stating repeatedly that since most employers have had to follow the Race Relations Act 1976 for so long, making one more leap will not give them too much trouble. That of course will be a matter that can only be proved once the regulations are imposed. But even the regulatory impact assessment acknowledges that partnerships of fewer than six people will feel the draught. They are brought into the system for the first time. The regulatory impact assessment makes the prediction that even if only 0.29 per cent of newly covered partnerships have to defend a case at employment tribunal this will cost them 3.5 million. I suspect that smaller partnerships will argue that the cost to them will in practice be proportionately higher since it is even more difficult for them to cope with the bureaucracy involved in tribunal cases.

The regulatory impact assessment also acknowledges that the smaller partnerships are likely to have to bear the brunt of a further 3.5 million for compliance costs. The regulatory impact assessment states at paragraph 2.2 that the Government are taking a "light touch" approach to the implementation of the directive. Heaven preserve us from a heavier touch. I do not support the making of the regulations.

10.23 p.m.

Lord Lester of Herne Hill: My Lords, this morning the Government announced the commissioning of a review into the health and safety hazards of "nanotechnology"—the science of the very small. Although I do not share at all the criticisms that have just been made by the noble Baroness, Lady Anelay of St Johns, from the Conservative Front Bench, these flawed regulations are an example of politically-driven nanotechnology as applied by the Government to equality legislation, and of the hazards that they will create in the effective enjoyment of the fundamental right to equal treatment without unjustifiable discrimination.

One hazard of nanotechnology is known as "grey goo"—an amorphous and unsightly mess. That is not a bad description of the regulations before us, and what we will have in the other equality regulations next week and beyond. I have a particular interest in the subject because I had the privilege of assisting Lord Jenkins of Hillhead as Home Secretary in developing policy in what became the Race Relations Act 1976 and Sex Discrimination Act 1975. I also introduced the Equality Bill that was recently approved by this House and has received massive support among more than 220 Members of the other place.

The Government are to be commended for having supported the making of the equality directives under Article 13 of the Treaty on European Union. I do not share the root and branch attack on the regulations

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that we have just heard. There is, as we approach night, no time to consider all of the examples. I therefore take just one example to stand for all—the burden of proof issue. Article 8 of the directive is quite clear about the burden of proof. It does not contemplate a reversal of the burden of proof; it contemplates a more even-handed sharing of the burden of proof. That is exactly what Regulation 41 does. For good measure, that is what the courts for years have essentially been saying should happen in gender discrimination cases and in race discrimination cases under existing legislation. It is also what has been done for women and men who have been victims of sex discrimination as well.

So I do not think that there is anything in that kind of criticism, in just the same way as some of the other criticisms that have been made of these regulations could equally be made, if they were correct, as regards gender discrimination legislation and disability discrimination. I would be astonished if the Conservative Front Bench would dare to attack gender and disability discrimination in the same vehement terms that we have heard today.


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