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Mr. O'Brien: There have been several discussions during the Bill's passage through this House and the other place about the approach that should be taken to the definition of public authorities for the purposes of section 19B of the Race Relations Act 1976. The choice is essentially between a listing approach and a generic definition as used in the Human Rights Act 1998. The Government have throughout listened to the arguments, both inside and outside the House, particularly those about the need to avoid small gaps arising in coverage, which was a perceived risk with the listing approach that was originally proposed.
In response to those concerns, we made a commitment in Committee to introduce amendments that would provide for the adoption of a generic definition for the purposes of defining public authorities. These amendments meet that commitment. They delete the provisions for a listing approach for the purposes of section 19B of the 1976 Act and provide instead for a definition based on section 6 of the Human Rights Act 1998. As flagged up in Committee, the generic definition has been adjusted to allow for a very limited number of specific exemptions--namely, for the Houses of Parliament, the legislative functions of the Scottish Ministers, the National Assembly for Wales and United Kingdom Ministers, the intelligence agencies and judicial acts.
The Government stress that functions have not been exempted other than where there are good reasons for doing so. Our approach is governed by the principle that the Bill should not fetter the legislative functions of Westminster, the Scottish Parliament or the National Assembly for Wales. Ministers will remain subject to parliamentary scrutiny but, like others involved in the legislative process, they must retain the ability to make legislation that discriminates, where that is justified--for example, to implement immigration legislation that requires discrimination on grounds of nationality, or social security or education legislation that discriminates on grounds of residence. That is consistent with the existing provisions of the 1976 Act, which provide that acts done with statutory authority are not unlawful.
To include the intelligence and security agencies in the Bill would have required special clauses to safeguard against claimants misusing certain provisions to undermine the operational effectiveness of those agencies. The necessary safeguards would, in practice, have the same effect as excluding the agencies from the Bill. The Government therefore believe that it is better to continue to make the exemption clear, as we did with the listing approach, rather than having it obscured by special clauses which might be a matter of judicial interpretation. We want the position of the security and intelligence agencies to be very clear.
Nor do the Government think it appropriate that decisions of courts and tribunals should be challenged by way of proceedings in the county or sheriff court under section 19B. Allowing civil action against judges would interfere with the concept of judicial immunity, and the Government would not wish the Bill to cut across that. Immunity is an aspect of the principle of an independent judiciary. The independence of the judiciary is a key feature of the British constitution and runs parallel with immunity.
Mr. David Lammy (Tottenham): This debate about the nature of public authority is clearly more than simply a semantic debate about definition. Many private companies and organisations carry out their business under a clear public remit. Many of those profit-making companies have habitually neglected to promote, employ and support ethnic minority people in the workplace. My constituents will welcome the amendment, but I hope that we are moving towards a situation in which racial equality is
Mr. O'Brien: My hon. Friend is right. We should ensure that private sector organisations which undertake public functions should know that they will have obligations under the race relations legislation, and that the Bill will cover them in so far as they undertake the public functions for which they are contracted. Indeed, Group 4 has today taken the trouble to say publicly that it is delighted that the Government have decided to use the Human Rights Act definition of a public authority in the Bill. Group 4 says that it firmly believes that there should be a level playing field between the public and private sectors in all social policy matters. I welcome Group 4's announcement; it is entirely along the lines that my right hon. Friend the Secretary of State has said that he wants to go.
Let me return to judicial immunity, which is an important part of our constitution. Judicial immunity does not mean that a person lacks a remedy against racial discrimination or any other form of bias, but the proper avenue for a challenge in the courts is by an appeal, not by making a fresh claim against a judge. The fair and efficient functioning of the justice system requires us to avoid satellite litigation and the reopening of cases.
I must flag up another important issue. It will be for the courts to decide whether a public body is a public authority for the purposes of the legislation and whether a particular function is a public function. That bears on the point that I made earlier about Group 4 and private companies and other private bodies that undertake public functions. The Government are grateful to those who have contributed to the way in which the legislation will be interpreted, especially to private companies such as Group 4, which have said that they will be happy to be brought within the legislation.
Having listened to all the contributions, the Government are also grateful to Members of both Houses of Parliament who have given their views on how we should take forward that definition and on whether we should use either the list or the generic approach. We have shown that we have listened with great care to the debate. There was a genuine argument about the various public functions that might have slipped through the net if we had used the listing approach and, therefore, we think that an approach based on the Human Rights Act 1998 is the best that can be delivered. In due course, the courts will make judgments on cases under the 1998 Act. That will define matters of public function and public authority. I hope that that will soon clarify the matters covered by the 1998 Act and the Bill, and that hon. Members will agree to the amendment.