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Mr. Straw: I will give way to the hon. Member for Aldershot (Mr. Howarth) first, because I said that I would.
Mr. Howarth: I thank the Home Secretary for giving way. He is always courteous in this regard.
The right hon. Gentleman referred to the authorities mentioned in schedule 1 to which the Bill will extend coverage. There is a specific exclusion in respect of security, and GCHQ is specifically mentioned. Will the right hon. Gentleman confirm that that is the case, and explain why GCHQ has been excluded?
Mr. Straw:
National security is not entirely excluded, and the agencies referred to are not excluded in terms of employment practice. If the hon. Gentleman will allow me, I will deal with that part of the Bill when I reach it in my speech.
Dr. Lewis:
Would it be regarded as de facto evidence of discrimination if members of one ethnic or religious group were over-represented in prison in proportion to their strength in the population, or would each case of discrimination be viewed on an individual basis? It might be argued that some groups are over-represented at Oxford and Cambridge because a disproportionate number of their members pass the entrance examinations.
Mr. Straw:
That arises acutely in the context of indirect discrimination. I shall return to that when I reach the appropriate point in my speech; if I have not answered the hon. Gentleman's point, I shall happily give way to him again.
There are some exceptions and omissions from the list of public authorities in the schedule, and I want to reassure the House about them. In most instances, omissions have been made for one of three reasons. First, the functions of some bodies are already clearly covered in the existing Race Relations Act: education bodies are an obvious example. Secondly, the schedule does not currently include non-departmental public bodies--quangos. We intend, where it is established in consultation with such bodies that they have functions not already covered by the Act, to add them to the list of public authorities by order. Thirdly, as I have explained, the schedule does not include private bodies carrying out public functions. One way or another, we intend such bodies to be covered by the Act in respect of their public functions.
That provision represents an important extension of the existing legal protection against racial discrimination. The Government will seek to strengthen the provision further in Committee by making it unlawful for a public authority to discriminate indirectly as well as directly, in line with my announcement to the House on 27 January.
The distinction between those two types of discrimination is this. Direct discrimination is where one person treats another less favourably than he treats, or would treat, other people. Indirect discrimination occurs
when a requirement or condition which, though applied equally to people of different racial groups, has the effect that the proportion of one racial group that can comply is considerably smaller than the proportion of another racial group, but--to respond to the hon. Member for New Forest, East (Dr. Lewis)--such a requirement or condition is unlawful only if it cannot be justified irrespective of racial group and if it is detrimental to the claimant who cannot comply.
To answer the hon. Gentleman's point directly, if it turned out that one racial group were markedly over- represented in the prison population, inquiries could be made about why that was. If it turned out that the reason was that courts, magistrates, juries, sentencers all had a down on that particular racial group, it would be very difficult to justify that proportion of people being in the prison population. On the other hand, if it turned out that the reason why they were over-represented was that they were committing more crimes, it would be entirely justified.
There is considerable case law on the subject, not in respect of that particular area, because it has not been the subject of the law, but in respect, for example, of employment practices--people from one racial group have complained about employment practices--and other areas. In one quite well-known case, someone from abroad complained that he was being indirectly discriminated against because one of the conditions for going on a Manpower Services Commission course was that he should have had work experience in this country. He said that he could not have had such experience because he had not been here.
The courts held that the commission was justified in its approach because it had nothing to do with people's racial origin: it was essential for the course that people had such experience. It might be said parenthetically that there would come a moment when that person could have had that experience. I hope that that answers the hon. Gentleman's point.
Mr. Simon Hughes:
Will the Home Secretary give way?
Mr. Straw:
May I make some more progress? Then of course I will give way.
Hon. Members will be aware that the Government have given very careful thought to the decision to extend indirect discrimination provisions to the Bill. I say openly that there was anxiety across government about how exactly that would fall. There was concern to ensure that such a provision would be effective without leaving public bodies open to routine and unnecessary legal challenge in circumstances where their policies were entirely proper and justified.
Since the Bill's publication last December, I have listened carefully to the arguments about the issue, as did my colleagues in government. We concluded that, on balance, the risk of spurious challenge was outweighed by the principle of including indirect discrimination in respect of public sector functions in the Bill.
I put it on record that I am grateful to the many right hon. and hon. Members who made representations to me about the measure. I am also grateful to their lordships for their contribution.
Mr. Simon Hughes:
All of us, I think, are grateful to the Government for having recognised the strength of the case and reasonably said that they would table amendments to deal with the indirect discrimination point. I wonder whether the Home Secretary can tell us at this stage whether he has reached a conclusion about whether to take the proposed easy route, which is simply to take two lines out of the Bill--which was put to him by the outgoing chairman of the Commission for Racial Equality and others, including some in the other place--or whether that is still up for debate. If the right hon. Gentleman were able to give a simple answer and support the simple proposition, it might get simple reward from hon. Members on both sides of the House this afternoon.
Mr. Straw:
My intention was to take the simple route. Some people sometimes think that I take the complicated route, but I am not up for that. If my memory is failing me, I shall come back to the hon. Gentleman.
It would be appropriate to place on record not only my thanks, but the thanks of a huge number of people, for the work of Lord Lester of Herne Hill, who over the years has made probably a greater, more singular, contribution to the development of race relations legislation than anyone else in this country. It was he who--behind Roy Jenkins--was the architect of the Race Relations Act 1965, the Race Relations Act 1968 and the Race Relations Act 1976. I have no hesitation in saying that I have listened very carefully to the advice that he has offered.
The Government also intend--I have made it clear--to table in Committee an amendment to place a statutory duty on public authorities to promote race equality. The Government regard the promotion of equality as a positive way of eliminating unjustifiable indirect discrimination and, distinct from that, what the Stephen Lawrence inquiry called "institutional racism". Our setting of targets for ethnic minority recruitment, retention and promotion and our guidelines for mainstreaming race equality into policy development and implementation offer concrete examples of how race equality can be promoted.
The Government's commitment to placing the promotion of equality by public bodies generally on a statutory footing was announced in our equality statement, on 30 November 1999. We have since said that we shall reinforce that commitment by tabling a Government amendment to enshrine the principle in the Bill, leaving room for consultation on how the duty will operate in practice.
Both those amendments will considerably strengthen the Bill and help to create the right legislative framework to bring about the step change in race equality that the Government are seeking to achieve.
I should like now to describe the special provisions relating to immigration, asylum and nationality, in new section 19C.
The extension in the Bill of the Race Relations Act 1976 will cover the work of immigration staff. That includes all staff working in the Home Office immigration and nationality directorate and the immigration service in the United Kingdom, and--I make this clear--entry clearance officers based overseas.
The Bill provides various consequential measures to secure a proper alignment between the various statutory provisions covering race relations and those governing immigration, asylum and nationality. Those 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.
The House will be familiar with the measures in the Immigration and Asylum Act 1999 to produce a new one-stop procedure for appeals. Those measures, once implemented, are aimed to support the achievement 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.
The operation of an effective and rational immigration system, however, necessarily and legitimately requires a distinction to be made between individuals on the basis of their nationality and, occasionally, their ethnic or national origin. For example--this may be stating the obvious, but it is quite important that it should be stated--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 not. There are different rules for those who enjoy free movement rights under European law and those who do not. The immigration rules therefore make distinct provisions for nationals who require a visa to travel to the United Kingdom and for those who do not. Some rules and policies apply only to Commonwealth countries or to specified nationalities.
The safeguards in the Race Relations Act 1976 covering acts of discrimination done in pursuance of other statutory provisions, as interpreted by case law, are--within the context of the Bill--insufficient to allow the immigration system to operate as it should. If consequential provisions were not made, Ministers would, for example, be unable to authorise special compassionate exercises when necessary for particular ethnic or national groups--as we did last year, when we had the special exercise to evacuate and provide protection to Kosovan Albanians--and immigration staff would be unable to perform their duties in accordance with ministerial instructions.
The powers in the Bill will be subject to very close safeguards. It will be unlawful for immigration staff to discriminate on grounds of race or colour or, in the case of nationality and ethnic and national origins, go beyond what is specified in immigration and nationality law or expressly authorised by Ministers. We are also considering making further changes to the Bill to provide independent oversight of the operation of those provisions. I hope to make further proposals on those changes in Committee.
New section 19D seeks to preserve the role of the criminal courts as the sole forum for determining guilt by exempting from the Bill's provisions decisions not to prosecute. The importance of that principle was recognised both by the White Paper on freedom of information and also by the Phillips royal commission, in 1981, which said:
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.
9 Mar 2000 : Column 1212
Clause 2 relates to appointments made on the recommendation or approval of Ministers and Departments, but not by them. It brings such appointments more in line with existing arrangements for other public appointments.
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