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Race Relations (Amendment) Bill [H.L]

These notes refer to the Race Relations (Amendment) Bill [H.L] as brought from the House of Lords on 3 rd February 2000 [Bill 60] Race Relations (Amendment) Bill [H.L] EXPLANATORY NOTES INTRODUCTION 1. These explanatory notes relate to the Race Relations (Amendment) Bill [H.L] as brought from the House of Lords on 3rd February 2000. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given. SUMMARY 3. 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 by police officers; and to amend the exemption under the Act for acts done for the purposes of safeguarding national security thus remedying a European Convention on Human Rights (ECHR) incompatibility in that legislation. BACKGROUND 4. The Race Relations Act 1976 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. 5. The Act applies to discrimination by public authorities in these areas. In relation to goods, facilities and services, it has been found by the courts to apply only where the act in question is at least similar to an act that could be done by a private person. The Act does not generally apply to functions of public authorities that do not constitute employment, training and education, or the provision of goods, facilities and services. 6. Not all of the functions of public authorities are covered by the Act. Further, the precise distinction between those functions which are presently covered and those which are not is unclear and is only clarified in particular cases by a court decision. However, it has been held that the Act does not apply to the performance of duties such as immigration control or law enforcement. 7. The Act makes employers vicariously liable for acts of racial discrimination committed by their employees in the course of their employment, subject to a defence that the employer took such steps as were reasonable practicable to prevent the employee discriminating. Because police officers are office-holders, not employees, chief officers of police are not vicariously liable for acts of racial discrimination by police officers. 8. The Commission for Racial Equality (CRE) proposed, in its Third Review of the Act, that the Act should be extended to all public services and that vicarious liability should be extended to the police. 9. The Report of the Inquiry into the death of Stephen Lawrence recommended, among other things, "that the full force of the Race Relations legislation should apply to all police officers, and that Chief Officers of Police should be made vicariously liable for the acts and omissions of their officers relevant to that legislation." COMMENTARY Clause 1: Discrimination by public authorities 10. Clause 1 of the Bill extends the scope of the Act in relation 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 discriminate against a person or to victimise a person on racial grounds in carrying out any of its functions. Section 19C provides that an immigration or nationality decision is not unlawful under section 19B if it is appropriately authorised and is on grounds of nationality or ethnic or national origin. Section 19D provides that section 19B does not apply to a decision not to institute criminal proceedings, or, where a decision not to institute criminal proceedings has been taken, to any act done for the purpose of making a decision about instituting criminal proceedings. *     Discrimination on racial grounds is defined in section 3 of the Act as discrimination on the grounds of colour, race, nationality or ethnic or national origins. Clause 1 inserts new sections 19B, 19C and 19D into Part III of the Act. 11. Part III deals with non-employment cases. Inserting the new provision into Part III has the effect that, except where explicit alternative provision is made, all the enforcement provisions of the existing Act that apply to non-employment cases will also apply to the new provision. So, for example, except where explicit alternative provision is made, individuals will be able to bring proceedings under the new provision in the same way as for existing non-employment cases - in a designated county court (or in Scotland a sheriff court). Other examples of provisions in the existing Act that will apply to the new provision are provisions on court procedures, remedies, the CRE's powers, time limits, and exemptions. 12. Subsection (1) of section 19B makes it unlawful for a public authority to discriminate against a person on racial grounds in carrying out any of its functions. The subsection provides that, for the purposes of this provision, "public authorities" are those bodies either listed in Schedule A1, or belonging to one of the classes of bodies listed in that Schedule. 13. Subsection (2) of section 19B restricts the kinds of racial discrimination that are unlawful under the new provision. Discrimination under the Race Relations Act 1976 can take three forms - direct discrimination, indirect discrimination and victimisation.      *     Direct discrimination on racial grounds is defined in section 1(1)(a) of the Act. This provides that a person discriminates against another if on racial grounds he treats that other person less favourably than he treats or would treat other people.      *     Indirect discrimination on racial grounds is defined in section 1(1)(b) of the Act. It occurs when a requirement or condition which, although applied equally to people of different racial groups, has the effect that the proportion of a racial group that can comply is considerably smaller than that of another racial group that can comply. Such a requirement or condition is only unlawful if it cannot be justified irrespective of colour, race, nationality or national origin and if it is detrimental to the claimant who cannot comply.      *     Victimisation is defined in section 2 of the Race Relations Act 1976. It occurs when a person treats another person less favourably than he treats or would treat other people because that person has asserted their rights under the Race Relations Act 1976 or helped someone else to do so. Subsection (2) of section 19B has the effect that, in relation to the acts which fall within section 19B and 19C, only direct discrimination and victimisation by a public authority will be unlawful. The Government intends to bring forward an amendment at Committee Stage to provide that, in relation to acts which fall within section 19B and 19C, indirect discrimination as well as direct discrimination and victimisation will be unlawful (Hansard, 27 January 2000, col 1673). 14. Subsections (3) and (4) of section 19B provide that a person or body may be listed in respect of particular capacities or particular functions. 15. Subsection (5) of section 19B gives the Secretary of State the power to add to Schedule A1 to the Act (as inserted) by order. This means that further bodies or persons, or further classes of bodies or persons, or further particular functions or capacities of bodies or persons, can be added to the list of public authorities. However, an addition of any kind may only be made to the list if the Secretary of State considers that the addition relates only to functions of a public nature. The order is subject to the negative resolution procedure. 16. The ability to add to the list only particular public functions of bodies means that it will be possible to include on the list, for example, those private sector bodies that carry out functions of a public nature, for example, private companies running prisons under contract to the Home Office. 17. Subsection (6) of section 19B gives the Secretary of State the power to amend the Schedule if a body or office ceases to exist or changes its nature; or if a body stops exercising functions in a particular capacity, or stops exercising particular functions; or if functions of a body appear to the Secretary of State not to be functions of a public nature. This will make it possible to remove or amend entries to the list in these specific circumstances. The order is subject to the negative resolution procedure. 18. Subsection (7) of section 19B 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, including amending or repealing provisions made by or under an enactment. 19. Subsection (8) of section 19B prevents there being any overlap between the new provision and the existing provisions of the Act. 20. Subsection (8)(a) provides that if a function of a public authority is already covered by the Act, it will not also be covered by the new provision. So, for example, because Part II of the Act already makes discrimination by public authorities in relation to employment unlawful, the new provision does not apply to discrimination in relation to employment. 21. Subsection (8)(b) provides that where an activity would be unlawful but for an exemption in the Act section 19B will not apply. 22. Home Office and Foreign and Commonwealth Office officials who operate immigration policies are required to discriminate between individuals on the basis of their nationality and ethnic or national origin, when determining their entitlement to enter or remain in the United Kingdom or their entitlement to protection under various international instruments, including the 1951 UN Convention Relating to the Status of Refugees. Section 19C provides that an act in relation to immigration or nationality functions is not unlawful under section 19B if the act is done by a Minister of the Crown acting personally, or by officials acting in accordance with a relevant authorisation. It provides the facility for Ministers to authorise officials to act because the way officials actually carry out their duties is necessarily detailed in operational staff instructions approved by Ministers. It would be impracticable to set out in statutory or subordinate legislation every set of circumstances where discrimination would be required. 23. The existing exemptions provided in section 41 of the Act are insufficient to allow immigration, asylum and nationality laws to continue to operate as Parliament intended. 24. Subsection (1) of section 19C provides that new section 19B applies to an act of a relevant person carrying out immigration and nationality functions only if that act involves discrimination on the grounds of colour or race. Section 19B will not apply to the act of a relevant person carrying out immigration or nationality functions that discriminates on the grounds of nationality or ethnic or national origins. 25. Subsection (2) of section 19C defines a "relevant person." A relevant person is defined as a Minister of the Crown acting personally, or any other person acting in accordance with a relevant authorisation. 26. Subsection (3) of section 19C defines "relevant authorisation" as being where a requirement is imposed, or express authorisation is given, either with respect to a particular case or class of case, by a Minister acting personally; or with respect to a particular class of case, by any of the enactments mentioned in subsection 5, or by any instrument made under or by virtue of those enactments. Ministers will continue to be able to make personal decisions in individual cases in the national interest outside the Immigration Rules. Such decisions will be subject to other legal provisions which safeguard human rights, such as the Human Rights Act 1998. 27. Subsection (4) of section 19C defines "immigration and nationality functions" as functions exercisable by virtue of any enactment listed in subsection (5) of section 19 C. The enactments all relate to immigration and nationality. 28. Section 19D provides that section 19B does not apply to a decision not to institute criminal proceedings, or, where a decision not to institute criminal proceedings has been taken, to any act done for the purpose of making a decision about criminal proceedings. This exemption will prevent it being possible for a claimant to use the Act to discover the reasons for a decision not to prosecute, preserving the role of the criminal courts as the sole forum for determining guilt. Clause 2: Certain appointment functions outside the employment field 29. Section 4 of the Act covers discrimination against applicants and employees. Section 76 of the Act covers discrimination in relation to government appointments where section 4 does not apply. It only covers appointments by a Minister or government department. Clause 2 extends section 76 of the Act to appointments made on the recommendation or with the approval of a Minister or government department. This includes, for example, appointments by the Queen which are made on the recommendation of a Minister. 30. Subsections (3) and (4) of section 76 make it unlawful for a Minister or government department to discriminate on racial grounds in making a recommendation, or giving or refusing an approval, or making arrangements for determining who should be recommended or approved, for appointment to an office or post, where section 4 of the Act does not apply. 31. Subsection (5) of section 76 provides that the exceptions for private households and genuine occupational qualifications that apply to discrimination against applicants and employees under section 4 of the Act, should also apply in relation to the new provisions being inserted into section 76. 32. Subsections (6) and (7) of section 76 provide that the remedy for unlawful discrimination under section 76(4) (as inserted) 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. Clause 3: Police: extension of liability of chief officers etc 33. Clause 3 inserts new sections 76A and 76B into the Act. This provision makes a police authority liable for acts done by it to a constable. It also makes chief officers of police, or a chief constable of a police force in Scotland, liable for the acts done by him to a constable and it makes the chief officer liable for the acts of constables under his direction and control in relation to claims brought under the Act. It also provides for compensation, costs or expenses awarded as a result of a claim to be paid out of the police fund, or in Scotland from payments by the police authority. 34. Section 32 of the Act makes employers liable for the acts of their employees. This allows an individual who has been discriminated against by another in the course of that other's employment to bring an action against the employer as well as against the discriminator(s). There is a defence for the employer, under section 32(3), that he or she took reasonable steps to prevent the act of discrimination. 35. The definition of employment in section 78(1) of the Act states:      *     "employment" means employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly. 36. The holding of the office of constable does not fall within this definition. Accordingly, section 16 of the Act makes specific provision for chief officers of police and police authorities to be regarded as the employers of an individual police officer. 37. However, section 16 only applies to Part II of the Act. 38. Generally, section 88 of the Police Act 1996 and section 39 of the Police (Scotland) Act 1967 provide for the liability of a chief officer of police for the wrongful acts of constables under his direction and control. This does not, however, apply to acts of constables which are unlawful under the Act because section 53(1) provides that acts no proceedings shall lie under the Act unless they are specifically provided for under the Act 39. There is therefore no provision in law for chief officers to be held vicariously liable for the racially discriminatory actions of an individual officer. 40. Subsection (1) of section 76A provides that, for the purposes of this section, "relevant police office" means an office held as a member of a police force, a special constable or a police cadet. 41. Subsection (2) of section 76A makes provision equivalent to the current provision of section 16(1), which is to be repealed. It deals with the circumstances where a police officer has himself been discriminated against in the course of his employment. It provides that such an officer will have a remedy whether the discriminatory act was done by the chief officer or by the police authority. 42. Subsection (3) of section 76A provides that, for the purposes of section 32 of the RRA the holder of a "relevant police office" should be considered to be an employee of the chief officer of police, or the chief constable of a police force in Scotland. This provision therefore aligns the position of police officers with that of employees, thereby making chief officers of police liable for unlawful acts by an individual police officer, and provides that anything done by an officer in the performance or purported performance of his functions shall be treated as done in the course of his employment. 43. Subsection (4) of section 76A requires that compensation, costs or expenses awarded against a chief officer of police for proceedings against him under the Act shall be paid out of the police fund and any sum required by a chief officer of police for the settlement of any claim made against him if the settlement is approved by the police authority. This provision is equivalent to section 16(2) of the Act, which is to be repealed. 44. Subsection (5) of section 76A applies the provisions relating to actions that can be taken under the Act against a chief officer of police, to a chief officer of police for the time being or an individual standing in for the chief officer of police because the post of chief officer of police is vacant. It is equivalent to section 16(3) of the current Act, which is to be repealed. 45. Subsection (6) of section 76A allows the police authority to authorise payments from the police fund to cover damages, costs and settlements in respect of claims against individual officers under the direction and control of the chief officer of police under the Act. It makes provision equivalent to section 88(4) of the Police Act 1996 and the comparable provision in the Police (Scotland) Act 1967. 46. Subsection (1) of section 76B provides for section 76A to apply to the National Criminal Intelligence Service (NCIS) and the National Crime Squad (NCS) as it applies to a police force and makes specific provision relevant to these bodies as necessary. 47. Subsection (2) of section 76B applies section 76A to non-regular police forces such as the Ministry of Defence Police and the Royal Parks Constabulary and to the authorities with oversight of the non-regular forces and makes specific provision relevant to these bodies as necessary. 48. Subsection (3) of section 76B provides for a situation where a police constable is loaned to a police force which is not his home force, or a special constable is loaned to a police area which is not the area to which he is appointed. It makes the chief officer of police of the force under whose direction and control the police officer is temporarily, liable for the acts of that constable in relation to claims brought under of the Act. Clause 4: Criminal investigations and proceedings 49. Clause 4 amends sections 57 and 65 of the Act to minimise the risk of a claim under section 19B of the Act prejudicing associated criminal investigations or criminal proceedings. 50. Section 57 of the Act contains provisions for enforcement of claims under Part III of the Act. Subsection (1) inserts new subsections (4A) to (4E) into section 57. The new subsections make provision in relation to remedies available to claimants, and to the power of courts hearing cases to grant a stay of the civil proceedings, or in Scotland a sist, in particular circumstances. 51. Section 57(2) of the Act provides that, when a claim is brought in a designated county court (or in Scotland a sheriff court), all remedies are obtainable that would be obtainable in the High Court (or in Scotland the Court of Session). Subsection (4A) of section 57 restricts the ability of the court to grant certain remedies to a claimant when the claim is brought under section 19B against a public investigator or public prosecutor. There is no limitation on the court's ability to grant a remedy of damages or a declaration, or in Scotland a declarator. But the clause limits the power of the court to grant other remedies, for example injunctive relief, unless it is satisfied that such a remedy would not prejudice a criminal investigation, a decision to institute criminal proceedings, or any criminal proceedings. 52. Subsection (4B) of section 57 provides definitions of criminal investigation and public investigator functions for the purposes of section 57. 53. The Civil Procedure Rules already make it possible for a party to apply for, and for the court hearing a case under the Act to grant, a stay of the proceedings, including where there is a risk that those proceedings might interfere with a criminal investigation or criminal proceedings. A comparable procedure is available to have proceedings sisted in Scotland. Subsections (4C) to (4E) of section 57 make provision relating to the circumstances in which the court hearing a case under section 19B must grant a stay, or in Scotland a sist, in cases where a party to the proceedings has applied for a stay of the proceedings, or in Scotland a sist, on the grounds of prejudice to a criminal investigation, a decision to institute criminal proceedings or criminal proceedings, or where the court is otherwise considering whether to grant a stay, or in Scotland a sist. 54. Subsection (4D) of section 57 deals with circumstances where the decision to institute relevant criminal proceedings has been made or the criminal proceedings have begun. It requires the court hearing a case under the Act in these circumstances to grant a stay of the proceedings, or in Scotland a sist, unless the court is satisfied that the continuance of the proceedings would be unlikely to affect any criminal investigation or any issue which might arise in the criminal proceedings. 55. Subsection (4E) of section 57 deals with circumstances where no decision to institute criminal proceedings has been made. It requires the court hearing a case under the Act not to grant a stay of the proceedings, or in Scotland a sist, unless it is satisfied that the continuance of the proceedings under the Act would be contrary to the public interest or might prejudice any criminal investigation, the decision about instituting criminal proceedings, or any subsequent criminal proceedings. 56. Section 65(1) of the Act provides for forms ("section 65 questionnaires") to be submitted by the aggrieved person who considers he may have been discriminated against to the respondent, in order to help the person decide whether to institute proceedings and to more effectively present his case. The questions may relate to the respondent's reasons for doing any relevant act or to related matters. Section 65(2)(a) provides for the respondent's reply to be admissible as evidence in the proceedings. Section 65(2)(b) provides that, if it appears to the court that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period or that his reply was evasive or equivocal, adverse inferences may be drawn from that fact, including an inference that the respondent committed the unlawful act. 57. Subsection (2) of clause 4 inserts new subsections (4A) to (4C) into section 65 of the Act. These enable a respondent to proceedings under section 19B of the Act to decline to answer a section 65 questionnaire without the risk of adverse inferences being drawn where at the time of doing the relevant act the respondent was carrying out public investigator or public prosecutor functions and the respondent reasonably believes that to respond, or to give a different response, would be likely to prejudice any criminal investigation, any decision to institute criminal proceedings, or any criminal proceedings. Clause 5: Immigration and asylum appeals 58. 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 a designated county court (or in Scotland a sheriff court).      *     Appellate authority is defined in section 77(6) of the Immigration and Asylum Act 1999 as an adjudicator, the Immigration Appeal Tribunal, or the Special Immigration Appeals Commission. 59. Section 57 of the Act provides that proceedings under Part III of the Act shall be brought in a designated county court (or, in Scotland, a sheriff court). Section 77 of the Immigration and Asylum Act 1999 establishes a "one-stop" procedure for immigration and asylum appeals, where all grounds for appeal must be adduced before the immigration appellate authorities in appeal proceedings against an immigration or asylum decision. 60. Subsection (1) amends section 57 of the Act to provide that no section 19B proceedings may be brought under section 57(1) where the act of discrimination in question is a decision against which the claimant could appeal under section 65 of the Immigration and Asylum Act 1999 (as amended by this Bill). It also provides that no proceedings may be so brought if the claimant has an outstanding appeal under section 65, or is treated as having such an appeal outstanding by virtue of section 77(2) of the Immigration and Asylum Act 1999, which makes provision in relation to the one-stop appeal process. 61. There is no provision made for the immigration appellate authorities to award damages. However, subsection (8) of section 57 (as amended) provides that where a person wins an appeal in the immigration appellate authorities on the grounds of racial discrimination, it will then be possible for him to bring proceedings under section 19B in a designated county court (or, in Scotland, a sheriff court) and claim damages. It provides that in those proceedings, there is a presumption that the decision in question was an unlawful act of discrimination unless the contrary is proved

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Prepared: 4 February 2000